FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 17-4187 v. (D.C. No. 1:15-CR-00041-DB-1) (D. Utah) DEJON RAMON WALDRON,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, BALDOCK, and CARSON, Circuit Judges. _________________________________
Law enforcement officers arrested Defendant DeJon Ramon Waldron
following a search of his girlfriend’s apartment, where Defendant resided. In May
2016, a jury convicted Defendant of possession of methamphetamine with intent to
distribute, possession of marijuana with intent to distribute, felon in possession of
firearms and ammunition, possession of a firearm in furtherance of a drug trafficking
crime, and felon in possession of body armor. During the trial, unknown to both
Defendant and counsel for the government, one of the government’s witnesses—an
Ogden, Utah police officer—was under investigation for lying to his supervisor.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After discovering this information, Defendant filed a motion for a new trial,
contending the government’s failure to disclose that information before trial violated
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972). The district court denied the motion, because the witness was not critical and
Defendant failed to show the evidence at issue was material. On appeal, Defendant
challenges the district court’s conclusion and raises additional arguments regarding
due process, ineffective assistance of counsel, the jury instructions, and sufficiency
of the evidence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I.
An anonymous source reported to Utah Adult Probation and Parole that
Defendant, a parolee, possessed guns and drugs. Because of that tip, Utah Adult
Probation and Parole executed a search of Defendant’s residence with the assistance
of the Ogden, Utah Police Department (“OPD”). Four OPD officers—Shane Keyes,
Lucas Call, Michael Rounkles, and Matthew Ward—searched Defendant’s home.
Defendant’s girlfriend, Kyerinda Moore; Moore’s three minor children; and another
individual, Chaz Thompson were also present during the search.
In the course of the search, agents discovered a locked closet on a balcony.
The closet contained a small Sentry safe and a large red duffel bag. Officers gained
entry to the balcony closet and safe with a set of keys they found on Defendant’s
person. The duffel bag contained a Glock handgun, two magazines, a bullet-proof
vest, and a rifle. The safe contained a baggy of methamphetamine, ammunition,
multiple empty baggies, and a firearm cleaning kit.
2 Other parts of the apartment contained contraband as well. Officers
additionally found heroin and methamphetamine in the chest pocket of a pair of
women’s overalls in the master bedroom closet, as well as rolled marijuana cigarettes
and a scale disguised as a cell phone in the pockets of pink and purple coats in a hall
closet. Agents also discovered a large quantity of marijuana in a laundry basket in a
child’s room.
Following the search, a grand jury returned a superseding indictment charging
Defendant with possession of methamphetamine with intent to distribute (Count I);
possession of heroin with intent to distribute (Count II); possession of marijuana with
intent to distribute (Count III); felon in possession of firearms and ammunition
(Count IV); possession of a firearm in furtherance of a drug trafficking crime (Count
V); possession of a firearm with an obliterated serial number (Count VI); and felon in
possession of body armor (Count VII).1
Prior to trial, on April 14, 2016, the United States Attorney’s Office contacted
an OPD assistant chief seeking any potential impeachment information regarding one
of the officers that searched Defendant’s apartment—Sergeant Lucas Call—as
required by Giglio v. United States, 405 U.S. 150 (1972) (holding that where
reliability of a witness may be determinative of guilt or innocence, nondisclosure of
evidence affecting credibility falls within the rule that suppression of material
evidence justifies a new trial). The request stated that OPD should make the
1 A grand jury initially returned an indictment on June 17, 2015. A grand jury returned the operative superseding indictment on April 6, 2016. 3 Government aware of any additional potential impeachment information arising after
the request and during the pendency of the criminal action. Young responded on
April 19, 2016, that Call’s personnel file and his search revealed no investigations or
discipline calling into question Call’s credibility or honesty.
Less than one week later, on April 24, 2016, Call pursued a stolen vehicle
without authorization. On April 26, 2016, OPD Internal Affairs initiated an
investigation into whether Call followed proper procedures when he engaged in that
pursuit and whether he truthfully informed his supervisor about his involvement and
related matters connected with the pursuit.
Call met with Assistant United States Attorney Holly Shick on April 27, 2016,
to prepare for trial. Shick asked Call a series of questions to uncover potential
impeachment material. Call’s answers raised no Giglio concerns. Two days later, on
April 29, 2016, OPD Internal Affairs interviewed Call. At that meeting, Call signed
an acknowledgement that the inquiry into his conduct involved “lying, incompetence,
failure to comply with orders, and pursuit policy violations.”
Defendant’s trial commenced on May 2, 2016. While the attorneys selected a
jury, Call attempted to contact the government’s attorneys. Shick telephoned Call
during a break. Call explained that he was very sick from food poisoning and asked
whether it was necessary for him to testify. During the same conversation, Call told
Shick that OPD had placed him on leave because he participated in an unauthorized
pursuit. Shick informed Call that he had to testify.
4 The government’s attorneys then attended an ex parte conference with the
district court. At that conference, they told the district court about the call. The
district court inquired whether the incident involved allegations of dishonesty. The
prosecutors could not answer the district court’s question, but agreed to seek the
answer from Call. The district court advised that if no allegations of dishonesty
existed, then the government would not need to disclose the incident. Later that day,
Call informed Shick that the investigation did not involve allegations of dishonesty.
He further stated that he had not been interviewed and that his supervisors were
reviewing his dash camera video before interviewing him. Based on his
misrepresentations, the government’s attorneys did not disclose the investigation to
the defense.
During jury selection, the district judge told the potential jurors that they
should “be true to the obligation to find a person guilty if the evidence is sufficient to
persuade beyond a reasonable doubt that the person did what they are accused of
doing.” After jury selection, the district court noted “Defendant is not required to put
on any evidence. He can call witnesses if he wants to. There has been an indication
that none are expected, but if he changes his mind, that is his right.” The district
court further instructed the jury: “You’re finders of the facts and you should keep an
open mind. I don’t care if you talk to each other about the case along the way, but
you should keep an open mind and not form any opinions or little cliques of people
who think one way or another about the case as the process moves along.”
5 At trial, Call testified on direct examination solely about his role in searching
one part of the master bedroom closet. In an apparent effort to show Defendant’s
knowledge of the contraband located in the apartment, Call told the jury that the male
clothing in the closet was meticulously organized. He testified that he located a
male’s dark jacket in the closet, and that he located a large amount of well-organized
cash and two silver keys in separate pockets in that jacket. He identified those keys
and photographs of the cash and other evidence, as well as a photograph of the closet.
Cross-examination consisted of three questions, which confirmed that Call found
money in the jacket and did not find drugs or identification in the jacket.
Various officers’ testimony established that a set of keys possessed by
Defendant at the time of the search opened the balcony closet and the safe. Utah
Adult Probation and Parole Officer Stuart Carver testified that at the time of the
search, Defendant’s wallet was attached to his belt by a silver chain and a set of keys
was clipped to the silver chain. Detective Keyes testified that Defendant’s
identification was found in his wallet. Utah Adult Probation and Parole Officer Todd
Kirk testified that OPD Detective Matthew Ward brought to the balcony the keys that
unlocked the balcony storage closet and the safe. Kirk also testified that the officers
located contraband and other items in the storage closet and the safe. Ward testified
that he obtained the keys he used to open the balcony storage closet and safe directly
from Defendant’s person. Ward did not know that Call located a second set of keys
in the master bedroom closet. Finally, like Call, OPD Detective Michael Rounkles
6 testified that the men’s clothing in the master bedroom closet was meticulously
organized.
After the parties rested, the district court instructed the jury regarding the
government’s burden of proof. The district court’s instruction tracked Tenth Circuit
Pattern Instruction § 1.05 on the burden of proof. The district court explained to the
jury that the Government bore the burden of proving the Defendant guilty beyond a
reasonable doubt.
On May 3, 2016, a jury convicted Defendant on Counts I, III, IV, V, and VII
of the superseding indictment. On May 6, 2016, OPD emailed the government with a
follow up response to the Giglio request. OPD wrote: “We have initiated an internal
investigation regarding Sgt. Luke Call. The incident occurred last week and he has
been found to have lied to a supervisor and a subordinate.” The government
requested a copy of the Investigation Report and provided the report to defense
counsel on May 12, 2016.
Defendant timely filed a motion for a new trial, claiming the government
violated Brady by failing to provide the defense with impeachment material before
trial. The district court denied the motion, holding that the evidence allegedly
suppressed was not material because Call’s testimony was cumulative and not
absolutely critical, essential, or of paramount importance to the government’s case.
Over eight months later, on July 19, 2017, Defendant, through newly-retained
counsel, filed a Motion for Reconsideration of the district court’s order denying the
motion for a new trial. In that motion, Defendant raised many arguments for the first
7 time, including that the district court violated his Due Process rights by engaging in
ex parte communications with the government regarding the Giglio issue and that his
trial counsel was ineffective. The district court denied the Motion for
Reconsideration, holding that because Defendant did not base his claims on newly
discovered evidence, his motion was untimely.
The district court subsequently sentenced Defendant to 144 months in custody
on Counts I, III, IV, and VII, and an additional 60 months on Count V, for a total of
204 months imprisonment. Defendant appealed.
II.
Defendant now raises the following challenges to his convictions:
(1) the government suppressed evidence under Brady and Giglio by failing to
disclose the investigation into Call’s conduct and by failing to discover that
investigation; (2) the district court violated Defendant’s Due Process rights by
holding an ex parte conference with government counsel regarding potential
impeachment evidence; (3) the district court erred in several pre-instructions to the
jury; (4) defense counsel was ineffective when counsel presented Defendant’s case at
trial and when counsel presented Defendant’s motion for a new trial; and (5) the
government introduced insufficient evidence of dominion and control to sustain his
conviction. We address each issue in turn.
A.
“The Brady doctrine protects a defendant’s due process right to a fair trial by
ensuring that the prosecution does not conceal evidence that could warrant an
8 acquittal.” United States v. Headman, 594 F.3d 1179, 1183 (10th Cir. 2010). To
establish a Brady violation, a defendant seeking a new trial must show “(1) the
prosecution suppressed evidence, (2) the evidence was favorable to the defendant,
and (3) the evidence was material.” United States v. Mendez, 514 F.3d 1035, 1046
(10th Cir. 2008). “This duty to disclose applies not only to prosecutors, but also to
police and other government investigators.” United States v. Smith, 534 F.3d 1211,
1221 (10th Cir. 2008). Impeachment evidence falls within the Brady rule. Headman,
594 F.3d at 1183. Evidence “significantly enhancing the quality of the impeachment
evidence” usually will be material. Id. “Although Brady claims typically arise from
nondisclosure of facts that occurred before trial, they can be based on nondisclosure
of favorable evidence (such as impeachment evidence) that is unavailable to the
government until the trial is underway.” Id. We review de novo a claim of failure to
disclose evidence in violation of Brady. United States v. Scarborough, 128 F.3d
1373, 1376 (10th Cir. 1997).
Defendant claims that the government violated his rights under Brady by
failing to discover the investigation into Call’s conduct and by failing to notify him
of the investigation. He contends the evidence is material impeachment evidence.
The district court determined that Call’s testimony was cumulative, addressed only
the search of one-half of a bedroom closet in which Call found no contraband and
was, therefore, not material.
Defendant claims the district court erred by concluding that Call’s evidence
was immaterial. Defendant argues that although Call minimized his role in the
9 search of the apartment, his role in the investigation was significant in other respects.
For example, Call participated in the interview of Defendant’s girlfriend, who gave
conflicting statements as to whom the contraband belonged after the officers accused
Defendant of distancing himself from the contraband. Defendant also argues that
prosecutors relied upon Call’s testimony that he found a second set of keys in a closet
to bolster the link between Defendant to the items in the storage closet. Finally,
Defendant asserts that the government treated Call as a critical witness by
(1) requiring his presence at trial; and (2) by mentioning his participation in the
search during its closing argument.
Defendant’s Brady claim fails because he has not shown that the undisclosed
information is material. “Evidence is only material if it creates a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Smith, 534 F.3d at 1223 (internal quotation
marks omitted). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (internal quotation marks omitted). “To make the
materiality determination, we view the suppressed evidence’s significance in relation
to the record as a whole.” United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir.
2011). “What might be considered insignificant evidence in a strong case might
suffice to disturb an already questionable verdict.” Id.
“In instances where we have concluded that the allegedly suppressed
impeachment evidence was material, we have stressed that the witness being
impeached was absolutely critical to the government’s case.” Id. at 1123. The
10 evidence in this case does not support a conclusion that Call was a crucial or critical
witness to the government’s case. Indeed, several other witnesses that testified at
trial provided commensurate testimony—making Call’s testimony cumulative. Id.
As the district court concluded, Call testified regarding narrow issues relating to the
search of one half of the master bedroom closet where he found no contraband. He
did find a set of keys that appeared identical to the keys that linked Defendant to the
drugs, guns, ammunition, and body armor in the balcony closet and safe. The fact
that he located an ostensibly identical set of keys, however, provided little to the
prosecution and cannot be described as “crucial” or “critical” to the government’s
case because the keys used by officers to open the balcony closet and safe were
located on Defendant’s person. In addition, Detective Rounkles corroborated Call’s
testimony when he testified that the men’s clothing in the master bedroom closet was
meticulously organized. The district court correctly determined that, in light of the
overwhelming testimony against Defendant from other witnesses, Call’s testimony
was cumulative and not absolutely critical, essential, or of paramount importance to
the government’s case.
We also reject Defendant’s contention that the government’s reference to his
testimony in its closing argument made Call a critical witness. A review of the
closing argument demonstrates Call played a minor role in the government’s closing
argument. Although the government mentioned both sets of keys in closing
argument, the keys Call found in the master bedroom closet were not the keys that
directly linked Defendant to the storage closet and contraband. Both Detective Ward
11 and Officer Kirk testified that the keys Ward removed from Defendant’s person
opened the closet door and the safe inside of the closet. And, even though the
government mentioned Call by name when it referenced the meticulous organization
found in Defendant’s closet, Detective Rounkles provided similar testimony. For
these reasons, Defendant’s argument fails. See United States v. Reese, 745 F.3d
1075, 1089 (10th Cir. 2014) (concluding that although the government mentioned a
specific officer a handful of times in its closing, that fact did not make the officer a
critical witness).
In rejecting Defendant’s arguments, we are mindful of the Supreme Court’s
admonition not to look for “ample, independent evidence of guilt” or “evidence
sufficient to support the [jury’s] findings.” United States v. Ford, 550 F.3d 975, 983
(10th Cir. 2008) (citing Strickler v. Greene, 527 U.S. 263, 290 (1999)). “The critical
question is whether the lack of impeachment evidence shakes our confidence in the
guilty verdict.” Smith, 534 F.3d at 1223. Considering the testimony of the other
witnesses at trial—specifically, that other officers found the keys on Defendant’s
person that opened the balcony closet and safe—we conclude Call’s testimony was
not a crucial or critical part of the government’s case. Id. Because the impeachment
evidence does not shake our confidence in the guilty verdict, even assuming that the
Government violated the first two prongs of Brady by suppressing evidence favorable
12 to Defendant, the third prong of Brady is not met—i.e., the evidence is not material—
and Defendant is not entitled to a new trial.2
B.
Defendant next contends the district court violated his right to due process of
law when it held an ex parte conference with the government regarding Sergeant
Call.3 Defendant did not raise this argument in his motion for a new trial. Rather, he
2 For the first time in his Motion for Reconsideration, Defendant argued the evidence was material in light of alleged discrepancies in the Government’s case. Defendant indicates that Call allegedly participated in interviewing Defendant’s girlfriend, who allegedly gave conflicting statements as to whom the contraband belonged. Defendant also posits that law enforcement officers set out to definitively link him to the items in the storage closet and the fact that Sergeant Call reportedly found a second set of keys bolsters that assertion. This argument, which the district court did not have the opportunity to reach, does not impact our materiality analysis. Multiple officers questioned Defendant’s girlfriend, and the testimony at trial clearly established that the keys located on Defendant’s person opened the storage closet and safe. Defendant has failed to argue for plain error on these arguments. See United States v. De Vaughn, 694 F.3d 1141, 1159 (10th Cir. 2012) (stating the criminal defendant has the burden to satisfy the plain error rule.) Whether his failure to argue for plain error waives this claim on appeal, under our plain error standard of review for forfeited arguments, see infra Section II.B., Defendant cannot establish plain error because he cannot show prejudice. United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008) (noting that under the third prong, a defendant “must demonstrate a reasonable probability that, but for the error claimed, the result of the proceeding would have been different). Defendant has not shown a reasonable probability exists that had the Government disclosed the evidence, the result of the proceeding would have been different. 3 Defendant also accuses the district judge of violating Canon 3(A)(4) of the Code of Conduct for United States Judges, which provides that a judge should notify the parties of an unauthorized ex parte communication and allow the parties an opportunity to respond. Defendant did not raise this issue until filing his Motion for Reconsideration with the district court. In any event, this appeal is not a judicial disciplinary proceeding. “It therefore makes no difference on this appeal whether the district court violated the pertinent canon unless that violation somehow could have tainted the judgment from which [Defendant] appeals.” Law Offices of David Efron 13 raised it for the first time in his Motion for Reconsideration. Thus, we must
determine whether Defendant waived or forfeited this argument.
“We typically find waiver [as opposed to forfeiture] in cases where a party has
invited the error that it now seeks to challenge, or where a party attempts to reassert
an argument that it previously raised and abandoned below.” United States v.
McGehee, 672 F.3d 860, 873 (10th Cir. 2012). “Waiver is accomplished by intent,
but forfeiture comes about through neglect.” Id. (internal brackets omitted).
“Waiver, unlike forfeiture, requires a showing that a known right has been
intentionally relinquished or abandoned.” Id. (internal quotation marks and brackets
omitted). “A party that has waived a right is not entitled to appellate relief.” Id.
“Unlike waived theories, we will entertain forfeited theories on appeal, but we will
reverse a district court’s judgment on the basis of a forfeited theory only if failing to
do so would entrench a plainly erroneous result.” Id.
In this case, although Defendant failed to timely raise this issue, he did not
abandon it on the record below. As such, in order to prevail in this appellate
challenge, Defendant must make a sufficient showing of plain error. Id.
Accordingly, Defendant must show “(1) there was error, (2) that is plain, (3) that
v. Matthews & Fullmer Law Firm, 782 F.3d 46, 55 (1st Cir. 2015). As discussed in more detail in this opinion, no plain error is present. Case law from other circuits supports the Government’s position that ex parte communications are a proper method for addressing potential Giglio material. See infra. For this reason, we reject Defendant’s argument. 14 affects substantial rights, and (4) that seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Headman, 594 F.3d at 1183.
Even if the district court erred by having an ex parte conference with the
government, that error was not plain. To date, this circuit has not spoken on the
issue. Case law from other circuits, however, at least implicitly supports the
government’s position that ex parte communications are a proper method for
addressing potential Giglio material. United States v. Ramos-Cruz, 667 F.3d 487,
492 (4th Cir. 2012) (granting the government’s ex parte motion to allow law
enforcement witnesses to testify using pseudonyms following an ex parte hearing);
United States v. Preldakaj, 456 F. App’x 56, 59 (2d Cir. 2012) (rejecting defendant’s
argument that the court’s in camera review of potential Giglio evidence violated his
due process rights, and holding that the procedure adopted by the district court
protected the defendant’s interests and maintained the government’s legitimate right
to protect the confidentiality of its agents’ records); United States v. Blackman, 407
F. App’x 591, 592 (3d Cir. 2011) (concluding that material submitted ex parte for the
court’s in camera review did not constitute proper impeachment material and
therefore need not be disclosed to the defendant); United States v. Hamaker, 455 F.3d
1316, 1327 (11th Cir. 2006) (concluding that the government did not have to disclose
that a witness was a confidential informant based on the government’s ex parte
motion). Based on these cases allowing ex parte communications in similar
situations, any possible error would not have been obvious under the plain error
standard. United States v. Munoz, 812 F.3d 809, 816 (10th Cir. 2016); see also
15 United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006) (“If neither the
Supreme Court nor the Tenth Circuit has ruled on the subject, we cannot find plain
error if the authority in other circuits is split.”).
In support of his position, Defendant directs us to United States v. Carroll, 891
F. Supp. 2d 1239 (D.N.M. 2012). That case provides limited support for Defendant’s
position in that the district judge acknowledged that ex parte communications must
be used sparingly because such communications risk compromising a court’s
impartiality. Its persuasive force, however, ends there. The district court also cited
numerous cases that at least implicitly support the government’s position that ex
parte communications are a proper method for addressing potential Giglio material.
And, the court also concluded the defendant suffered no prejudice from the ex parte
communication.
Defendant’s reliance on United States v. Minsky, 963 F.2d 870 (6th Cir.
1992), is misplaced as well. In Minsky, the Sixth Circuit held the district court erred
when it held an ex parte bench conference with the government during a trial.
Months prior to trial, the defendant requested information related to conversations
and dealings between the government and witnesses. The district court ordered the
production of all Brady material in time for effective use at trial. The government
failed to disclose Brady material in a timely manner. In reviewing the defendant’s
claim, the Sixth Circuit acknowledged that an in camera review was not only proper,
but also probably required to deal with the Giglio issue. The Court concluded that
the district court erred, however, not because it held an ex parte conference, but
16 because of the eleventh-hour nature of the conference. Here, the district court held
the ex parte conference in a timely manner. Accordingly, Minsky does not provide
support for Defendant’s argument.
As mentioned above, we review this issue for plain error. Because we have
not spoken on the issue, and other circuit’s precedent implies that ex parte
submissions are a proper method for addressing potential Giglio material, we find no
plain error.
C.
Defendant also challenges three jury pre-instructions. He argues the district
court erred (1) in stating the burden of proof; (2) in stating that the defense did not
anticipate calling witnesses; and (3) in condoning discussion about the case prior to
deliberation. Where, as here, a party does not object to the inclusion or exclusion of
a particular instruction, “we review for plain error.” United States v. Smalls, 752
F.3d 1227, 1245 (10th Cir. 2014). As stated earlier, to prevail on a claim of plain
error, Defendant must establish that “(1) there was error, (2) that is plain, (3) that
affects substantial rights, and (4) that seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Headman, 594 F.3d at 1183.
Defendant first challenges the district court’s explanation of the burden of
proof. When instructing the jury, the district court provided an appropriate
instruction on the burden of proof. In fact, a large portion of its instruction tracks
Instruction 1.05 of the Tenth Circuit Criminal Pattern Jury Instructions. The district
court instructed the jury reciting verbatim Instruction 1.05 as follows:
17 The government has the burden of proving the defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the government’s proof exclude any reasonable doubt concerning the defendant’s guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all of the evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crimes charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. The district court then further instructed the jury as follows:
You are here to determine whether the government has proven the guilt of the defendant for the charges in the indictment beyond a reasonable doubt. You are not called upon to return a verdict as to the guilt or innocence of any other person or persons. So if the evidence in the case convinces you beyond a reasonable doubt of the guilt of the defendant for the crimes charged in the indictment, you should so find, even though you may believe that one or more other unindicted persons are also guilty. But if any reasonable doubt remains in your mind after impartial consideration of all of the evidence in the case, it is your duty to find the defendant not guilty. Prior to instructing the jury, however, the district court told the jury that it had
to find the evidence “sufficient to persuade beyond a reasonable doubt” and
“sufficient to support a verdict of guilty.” Defendant argues that the district court’s
statements regarding “sufficient” evidence confused the jury by allowing them to
convict based upon a lesser standard than beyond a reasonable doubt.
The district court’s reasonable doubt pre-instruction does not constitute plain
error. The pre-instruction did not deny Defendant his right to have the government
18 prove, and a jury find, him guilty beyond a reasonable doubt. “We do not assess the
district court’s reasonable doubt instruction in ‘artificial isolation,’ but view it ‘in the
context of the overall charge.’” United States v. Kieffer, 681 F.3d 1143, 1158 (10th
Cir. 2012) (citing Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)). “[T]he proper
inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional
manner, but whether there is a reasonable likelihood that the jury did so apply it.”
Victor v. Nebraska, 511 U.S. 1, 6 (1994).
Here, the district court properly relied on the Pattern Jury Instruction. That
instruction informed the jury that the government bore the burden of proof and that
the government must prove Defendant guilty beyond a reasonable doubt. In addition,
the district court’s instructions referred to the burden of proof being “beyond a
reasonable doubt” in no fewer than fifteen separate instructions. In light of its
repeated admonition that guilt must be found “beyond a reasonable doubt,” the
district court’s use of the word “sufficient” on two occasions was not error. Viewing
the district court’s charge in its entirety, no reasonable likelihood exists that the jury
applied the wrong burden of proof.
Defendant also asserts that the district court erred by unnecessarily pointing out
twice to the jury that Defendant did not anticipate calling witnesses. Specifically, in
its pretrial instructions, the district court said:
The defendant is not obligated in a criminal case to prove his innocence. It is the government’s burden throughout this trial to prove his guilt beyond a reasonable doubt. The burden always rests with the government and never transfers to the defendant. The defendant is not required to put on any
19 evidence. He can call witnesses if he wants to. There has been an indication that none are expected, but if he changes his mind, that is his right . . . . In response to defense counsel’s invocation of the exclusionary rule for witnesses,
the court also said that “I will ask each side to monitor your witnesses. Well, only
one side has them.” Defendant argues (without explanation) that Instruction 1.08 of
the Tenth Circuit Criminal Pattern Jury Instructions demonstrate the district court
erred when it made these two isolated comments.4
Defendant makes a one-sentence argument on this point without any
contentions or reasons for them. Because his one sentence argument on this point “is
too cursorily briefed to provide a basis for reversing the district court,” United States
v. Banks, 884 F.3d 998, 1009 (10th Cir. 2018) (citing Fed. R. App. P. 28(a)(8)(A)),
we consider it waived. Id.
Finally, Defendant contends the district court erred in condoning discussion
about the case prior to deliberation. The district court told the jury: “I don’t care if
you talk to each other about the case along the way, but you should keep an open
mind and not form any opinions or little cliques of people who think one way or
another about the case as the process moves along.”
No Tenth Circuit or Supreme Court precedent has held that a district court
commits error by allowing jurors to discuss a case before deliberations begin. And,
the circuits do not appear uniform in their treatment of the issue. The First Circuit
4 Pattern Instruction 1.08 provides that the defendant has the right to remain silent and not testify or call witnesses.
20 has held that an instruction like the instruction at issue here was error. United States
v. Jadlowe, 628 F.3d 1, 18–19 (1st Cir. 2010). The Second Circuit, however, has
held that: “Jurors are permitted to have conversations amongst themselves; they must
simply steer clear of topics that would prejudice their later deliberations or taint the
reasoning of their fellow jurors.” United States v. Siegel, 271 F. App'x 115, 116–17
(2d Cir. 2008). And this Circuit has held that a district court did not commit error by
failing to admonish the jury not to discuss a pending case during lunch. United
States v. Carter, 430 F.2d 1278, 1279-80 (10th Cir. 1970). Under these
circumstances, a consensus is not evident among the circuit courts that the Court’s
instruction—which told the jurors to not form opinions or cliques of people who
think one way—was error. As such, the district court did not plainly err. See Teague,
443 F.3d at 1319 (“If neither the Supreme Court nor the Tenth Circuit has ruled on
the subject, we cannot find plain error if the authority in other circuits is split.”).
D.
In his opening brief, Defendant simply listed in his summary of the arguments
sufficiency of the evidence as to dominion and control of the methamphetamine
found in the master bedroom closet. Specifically, Defendant stated his acquittal on
the heroin count established that the jury had a reasonable doubt on the elements of
dominion and control. In his reply brief, he again provides a conclusory statement
with no case law to support his argument. Specifically, he contends: “The
government does not address the jury’s acquittal on possession for sale of heroin,
even though the heroin and the methamphetamine . . . were found in the same item of
21 clothing (women’s overalls).” According to Defendant, that acquittal establishes
reasonable doubt on the elements of dominion and control.5
We will not make arguments for Defendant that he did not make in his briefs.
O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001). The
Federal Rules of Appellate Procedure require that the “appellant’s brief must
contain . . . appellant’s contentions and the reasons for them, with citations to the
authorities . . . on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A). Simply
listing an issue in an appellate brief without argument or citation to authority or
raising a similar argument for the first time at oral argument will not suffice to
present the issue to the Court. Christian Heritage Acad. v. Okla. Secondary Sch.
Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007) (“Where an appellant lists an
issue, but does not support the issue with argument, the issue is waived on appeal.”).
Accordingly, we decline to address Defendant’s summarily raised sufficiency of the
evidence arguments.
E.
In his Motion for Reconsideration on the motion for new trial, Defendant
raised ineffective assistance of counsel. We have long held that ineffective
assistance of counsel claims “should be brought in collateral proceedings, not on
direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en
banc). Indeed, such claims brought on direct appeal “are presumptively dismissible,
5 At oral argument, for the first time, Defendant challenged the sufficiency of the evidence as to his dominion and control of the closet on the balcony. 22 and virtually all will be dismissed.” Id. For effective appellate review, a district
court must develop a factual record and address the claim in the first instance. Id.
“Even if evidence is not necessary, at the very least counsel accused of deficient
performance can explain their reasoning and actions, and the district court can render
its opinion on the merits of the claim.” Id.
In this case, the district court did not address the argument on the merits,
holding that Defendant did not timely file his Motion for Reconsideration. “An
opinion by the district court is a valuable aid to appellate review for many reasons,
not the least of which is that in most cases the district court is familiar with the
proceedings and has observed counsel’s performance, in context, firsthand.” Id.
Defendant’s ineffective assistance of counsel claim should be presented to the district
court in a collateral proceeding so that the reviewing court can have the benefit of the
district court’s views. Accordingly, we decline to address the merits of Defendant’s
ineffective assistance of counsel claim.
F.
In conclusion, for the reasons set forth above, Defendant’s challenges to the
district court’s decision regarding materiality, as well as his additional arguments
regarding due process, ineffective assistance of counsel, the jury instructions, and
sufficiency of the evidence, are without merit.6
6 Defendant, in a conclusory fashion, urges us to vacate his judgment of conviction and sentence and remand for a new trial under the cumulative error doctrine. Although Defendant mentions in his statement of issues “the cumulative effect of the errors,” no heading of his opening brief relates to this topic, and his 23 AFFIRMED.
Entered for the Court
Joel M. Carson III Circuit Judge
reply brief offers a similar conclusory statement, directed only to the instructional errors. As mentioned above, listing an issue in an appellate brief without argument or citation to authority does not sufficiently present the issue to the Court. Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007). Accordingly, we do not reach Defendant’s cumulative error argument. 24