United States v. Wardell
Full Opinion (html_with_citations)
Defendant Wendel R. Wardell, Jr., was charged, along with three codefendants, with (1) conspiring to retaliate against a witness, in violation of 18 U.S.C. § 1513(b)(1) and § 371 (2005),
On appeal, Mr. Wardell argues that the evidence was insufficient to support his conviction on either count, and that the
BACKGROUND
While a more complete description of the facts of this case is presented in United States v. Pursley, 577 F.3d 1204, 1210-14 (10th Cir.2009) (âPursley II â), in which we affirm the district courtâs judgment against Mr. Wardellâs codefendant, a factual summary is provided here, which should be helpful in understanding our opinion. Also, facts particularly relevant to some of Mr. Wardellâs appellant issues are brought forth and highlighted in relation to our disposition of those issues.
Mr. Wardell and a fellow inmate, Mr. Pursley, were charged with various counts of federal tax fraud. United States v. Wardell, 218 Fed.Appx. 695, 696-97 (10th Cir.2007). Jessie Cluff, an inmate who participated in the tax-fraud scheme, testified against Mr. Wardell and Mr. Pursley. Subsequently, Mr. Cluff was assaulted in a holding cell at the federal courthouse in Denver, Colorado. A surveillance camera captured the assault, although it was not equipped for audio surveillance. Two inmates, Shawn Shields and Vernon Temple-man physically carried out the assault. But it allegedly was directed by Mr. War-dell and Mr. Pursley.
The government indicted Mr. Wardell, Mr. Pursley, Mr. Shields, and Mr. Temple-man on two counts: (1) conspiracy to retaliate against a witness, in violation of 18 U.S.C. § 1513(b)(1) and § 371, and (2) retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(1), and aiding and abetting the commission of this crime, in violation of 18 U.S.C. § 2. The government alleged that Mr. Wardell and Mr. Pursley conspired with Mr. Shields and Mr. Templeman to effectuate the assault on Mr. Cluff, in retaliation for Mr. Cluff s testimony against Mr. Wardell and Mr. Pursley in the tax-fraud case.
Mr. Cluff testified that he took part in the tax-fraud scheme for which Mr. War-dell and Mr. Pursley were prosecuted. At the time, he was serving a 48-year sentence, the result of a long history of felony convictions. Mr. Cluff agreed to cooperate with the government in exchange for immunity. After giving a statement to the IRS, he began to fear for his safety. Mr. Cluff expressed his fears in a letter to IRS Agent Moon, who handled the investigation. Mr. Cluff testified that his fears escalated when Mr. Wardell simultaneously sent him: (1) a copy of his pretrial interview with Agent Moon, with markings next to those statements that most incriminated Mr. Wardell; and (2) a letter, dated July 10, 2004, asking him to advise Mr.
At trial in this case, Mr. Cluff narrated the soundless videotape of the events preceding and during the assault. Mr. Shieldsâs and Mr. Templemanâs assault of Mr. Cluff lasted for approximately seventy seconds. The jury found each of the four defendants guilty on all of the counts for which they were indicted. We have previously affirmed the district courtâs judgment against Mr. Shields and Mr. Temple-man. See United States v. Templeman, 481 F.3d 1263, 1266 (10th Cir.2007); United States v. Shields, 219 Fed.Appx. 808, 809 (10th Cir.2007). And we also recently affirmed the district courtâs judgment against Mr. Pursley. See Pursley II, 577 F.3d at 1210.
At Mr. Wardellâs sentencing, the district court generally adhered to the advisory Guidelines applications and calculations stated in the Presentence Investigation Report (âPSRâ). Mr. Wardellâs base offense level was 14. Mr. Wardell then received two enhancements: (1) an eight-level enhancement under U.S.S.G. § 2J1.2(b)(l)(A) for being convicted of an offense that caused physical injury to another person in order to obstruct the administration of justice; and (2) a two-level enhancement under U.S.S.G. § 3Bl.l(c) for being a leader or organizer. With these two enhancements, Mr. Wardellâs total offense level was 24.
Mr. Wardellâs total offense level (24), coupled with his criminal history category (VI), yielded an advisory Guidelines range of 100 to 125 months for each offense. See U.S.S.G. ch. 5, pt. A, Sentencing Table. Pursuant to U.S.S.G. § 5G1.1, the district court then reduced the outer limit of the Guidelines range for each offense to the relevant statutory maximum. This reduction produced a final Guidelines range of 100 to 120 months for each count.
Mr. Wardell filed a timely notice of appeal. We appointed appellate counsel, who filed an appellate brief on Mr. Warden's behalf. Prior to the filing of this brief, Mr. Wardell filed a motion to represent himself. We denied this request, prompting Mr. Wardell to file yet another motion, seeking to represent himself. Although we did not immediately resolve this second motion, we did permit Mr. Wardellâs attorney to withdraw, based in large part upon Mr. Wardellâs desire to represent himself pro se. We then gave Mr. Wardell the opportunity to file a pro se supplemental brief, which he subsequently filed.
DISCUSSION
On appeal, Mr. Wardell argues that the evidence was insufficient to support his
I. Sufficiency of the Evidence for the Conspiracy Conviction
Mr. Wardell argues that the evidence was insufficient to sustain his conspiracy conviction. Mr. Wardell argues that the government failed to introduce evidence to establish that he participated in any agreement to assault Mr. Cluff and that he acted interdependently with any other alleged eoconspirator.
We review de novo a challenge to the sufficiency of the evidence to sustain a criminal conviction.
To convict a defendant under the general conspiracy statute, 18 U.S.C. § 371, the government must prove the following elements beyond a reasonable doubt: â(1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators.â United States v. Rogers, 556 F.3d 1130, 1138 (10th Cir.) (internal quotation marks omitted), cert. denied, - U.S. -, 129 S.Ct. 2783, 174 L.Ed.2d 282 (2009); United States v. Baldridge, 559 F.3d 1126, 1136 (10th Cir.), cert. denied, -- U.S. -, 129 S.Ct. 2170, 173 L.Ed.2d 1165 (2009). During the conspiracy, at least one of the coconspirators must commit an overt act in furtherance of the conspiracy. United States v. Thompson, 518 F.3d 832, 853 (10th Cir.), cert. denied, â U.S. -, 129 S.Ct. 487, 172 L.Ed.2d 355 (2008). Furthermore, a conviction for conspiracy requires the defendant to possess at least the degree of criminal intent necessary for the substantive offense that the parties are conspiring to commit. Weidner, 437 F.3d at 1033.
Because âsecrecy and concealmentâ are frequently essential to a successful conspiracy, âdirect evidence of conspiracy is often hard to come by.â United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir.2005) (alteration and internal quotation marks omitted) (quoting Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947)); see Thompson, 518 F.3d at 853. Thus, âconspiracy convictions may be based on circumstantial evidence, and the jury may infer conspiracy from the defendantsâ conduct and other circumstantial evidence indicating coordination and concert of action.â Dazey, 403 F.3d at 1159.
Mr. Wardell argues that the government introduced nothing but evidence of âmere association.â Aplt. Opening Br. at 29. In particular, Mr. Wardell contends that the governmentâs circumstantial evidence demonstrated only that: (1) he was associated with Mr. Pursley; (2) he was convicted of conspiracy to commit tax fraud; and (3) he attempted to dissuade Mr. Cluff from testifying against him in the tax-fraud case. No reasonable jury could find from this evidence, reasons Mr. Wardell, that the government proved the âagreementâ and âinterdependenceâ elements of the conspiracy offense beyond a reasonable doubt. Id. at 26-31. We assess Mr. Wardellâs argument in the context of the elements required to establish conspiracy.
A. Agreement
The foundation of a conspiracy is the agreement to commit an unlawful act. An agreement to violate the law may be express or implied. United States v. Whitney, 229 F.3d 1296, 1301 (10th Cir.2000). As we have stressed, an agreement âmay be inferred entirely from circumstantial evidence.â Id. Relevant circumstantial evidence includes: the joint appearance of defendants at transactions and
Nevertheless, âmere association,â standing alone, is inadequate; an individual does not âbecome a member of a conspiracy merely by associating with conspirators known to be involved in crime.â United States v. Powell, 982 F.2d 1422, 1429 (10th Cir.1992). The touchstone of the analysis, therefore, is whether âthe circumstances, acts, and conduct of the parties are of such a character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.â Dazey, 403 F.3d at 1159 (internal quotation marks omitted).
The government introduced sufficient evidence from which a reasonable jury could find beyond a reasonable doubt that Mr. Wardell knowingly entered into, and participated in, an unlawful agreement with Mr. Shields, Mr. Templeman, and Mr. Pursley to assault Mr. Cluff. Multiple pieces of evidence, when analyzed collectively and in the light most favorable to the government, take the governmentâs proof of conspiracy beyond the realm of mere association.
The government introduced evidence of Mr. Wardellâs motive to organize the conspiracy. The jury heard testimony that Mr. Wardell took unsuccessful steps to deter Mr. Cluff from testifying prior to the tax-fraud trial. He commanded Mr. Cluff to keep his âmouth shutâ during the investigation. R., Vol. XI, Tr. at 283 (Jury Trial, dated Dec. 6, 2005). When this strategy failed, Mr. Wardell slipped a âletterâ to âone of his friendsâ at Mr. Cluffs prison. Aplee. Br. Attach. 1, at 1 (Govât Ex. No. 8, dated Nov. 17, 2003). This action caused Mr. Cluff to fear for his life. He penned a letter to IRS Agent Moon, who handled the tax-fraud investigation. Although at the time he expressed no particularized fear of Mr. Wardell, he noted that âas sure as Iâm writing this letter they will kill me after I testify.â Id. The âtheyâ to whom Mr. Cluff referred was â[Mr.] Pursley and his friends.â Id. Mr. Wardell admittedly had a âlong-standing friendshipâ with Mr. Pursley. Aplt. Opening Br. at 31.
Closer to trial, Mr. Wardell also sent Mr. Cluff a copy of Agent Moonâs interview memorandum, which memorialized Mr. Cluffs pretrial statement. He asked Mr. Cluff to âreviewâ and âverifyâ the most incriminating aspects of his statement, which he had âhighlighted.â Aplee. Br. Attach. 2, at 2-8 (Govât Ex. No. 9, dated July 10, 2004); see also R., Vol. XII, Tr. at 444, 450-51. Although the July 10, 2004 letter could be construed as Mr. War-dellâs pro se attempt to ascertain the veracity of Agent Moonâs notes, a reasonable juror also could have interpreted this letter as Mr. Cluff did â as a form of coercion, a way of getting Mr. Cluff to âchangeâ his testimony prior to trial. R., Vol. XII, Tr. at 451.
Mr. Wardellâs motive for retaliation only intensified after Mr. Cluff testified in the tax-fraud case. Mr. Cluffs testimony primarily inculpated Mr. Wardell, with whom Mr. Cluff prepared and filed the fraudulent tax returns. By contrast, neither Mr. Shields nor Mr. Templeman was implicated in the tax-fraud prosecution. In fact, Mr. Cluff testified that he had never met Mr. Templeman prior to the day of the assault, and that he first met Mr. Shields a week earlier in the courthouse jail while waiting to testify. Moreover, Agent Moon testified that neither Mr. Shieldsâs nor Mr.
Circumstantial evidence also indicated the nature of Mr. Wardellâs role in orchestrating the assault through the writ process. On or about May 12, 2005,
In addition, evidence could support the proposition that Mr. Shields, Mr. Pursley, and Mr. Wardell confirmed the existence of this agreement on the day of the assault. Mr. Hoskins (another prisoner) testified that he was in the van with Mr. Wardell and Mr. Pursley on the way to the courthouse and that, prior to picking up Mr. Shields, Mr. Pursley asked Mr. Hos-kins to move over because they were picking up a friend and wanted to speak with him. Then, although Mr. Pursley and Mr. Shields did most of the talking, Mr. War-dell participated with them in a whispered conversation during the nearly one-hour van ride. Using âlogical and probabilistic reasoning,â United States v. Truong, 425 F.3d 1282, 1288 (10th Cir.2005) (internal quotation marks omitted), a reasonable jury could have inferred that the theme of this clandestine conversation was the imminent assault, rather than the merits of the tax-fraud case, in large part because Agent Moonâs and Mr. Cluffs testimony indicated that Mr. Shields had no involvement in the tax fraud and, bolstering that point, he in fact was never called to testify.
Mr. Shieldsâs alleged admissions just prior to the assault further confirmed the
The jury heard testimony that immediately prior to the assaultâs occurrence Mr. Wardell took steps to ensure its success. For instance, Mr. Hoskins testified that after he was placed in the cell with Mr. Wardell and Mr. Pursley, he heard someone from Mr. Shieldsâs cell ask, âGuess who is in here with me?â Id. at 575-76 (internal quotation marks omitted). Either Mr. Wardell or Mr. Pursley commented about âthe rat fuck thatâs testifying,â and Mr. Shields laughed. Id. at 576. One of the two men then said, âShorty will take care of him,â
From Mr. Hoskinsâs testimony, a jury reasonably could have found that Mr. War-dell facilitated the assault by working with Mr. Pursley to orally identify Mr. Cluff as a âratâ and working with Mr. Pursley to instruct others to make noise to overcome the sounds of the assault. Such a reasonable inference from the evidence would have established Mr. Wardenâs knowledge of and participation in the plot (i.e., conspiracy) to attack Mr. Cluff.
Finally, the jury also heard evidence suggesting that, after the assault, Mr. Wardell tacitly acknowledged his own involvement in the conspiracy. Mr. Cluff testified that after the assault, Mr. War-dell yelled out, âThatâs what you get, you fucking rat.â Id. at 472 (emphasis added) (internal quotation marks omitted). He then issued another threat stating, âIf you know whatâs good for you, you better have your mom send me some money.â Id. These statements clearly link Mr. Wardell to the agreement to assault Mr. Cluff in retaliation for his testimony in the tax-fraud case.
We require interdependence among coconspirators. See, e.g., Baldridge, 559 F.3d at 1136; United States v. Edwards, 540 F.3d 1156, 1158 (10th Cir.2008). Interdependence is present if âthe activities of a defendant charged with conspiracy facilitated the endeavors of other alleged coconspirators or facilitated the venture as a whole.â United States v. Horn, 946 F.2d 738, 740-41 (10th Cir.1991); see Rogers, 556 F.3d at 1138-39 (âInterdependence is established when each co-conspiratorsâ actions are necessary to accomplish a common, illicit goal.â).
The same evidence that supports Mr. Wardellâs participation in the agreement to assault Mr. Cluff also satisfies the interdependence element. As discussed, a reasonable jury could have found from the governmentâs evidence that: (1) Mr. War-dell wanted retribution for Mr. Cluffis testimony against him during the tax-fraud case; (2) he acted in concert with Mr. Pursley to subpoena Mr. Shields and Mr. Templeman to the courthouse for the sole purpose of executing the assault; (3) he met with Mr. Pursley and Mr. Shields on the day of the assault to confirm the plan; (4) he helped facilitate the assault from his cell; and (5) after the assault, he menacingly confirmed (albeit tacitly) his involvement by describing Mr. Cluff s assault as a form of poetic justice. These reasonable findings would have established beyond a reasonable doubt that the success of the venture as a whole â Mr. Cluffs beating â depended upon the steps Mr. Wardell took to realize this common goal.
II. Sufficiency of the Evidence for the Retaliation Conviction
Mr. Wardell also challenges his conviction for retaliating against a witness pursuant to 18 U.S.C. § 1513(b)(1). To convict a defendant under § 1513(b)(1), the government must prove beyond a reasonable doubt that (1) the defendant knowingly engaged in conduct either causing, or threatening to cause, bodily injury to another person, and (2) acted with the intent to retaliate for, inter alia, the testimony of a witness at an official proceeding. 18 U.S.C. § 1513(b)(1); see United States v. Cofield, 11 F.3d 413, 419 (4th Cir.1993) (listing elements of offense). The doctrine announced by the Supreme Court in Pinkerton, on which the jury was instructed, forecloses Mr. Wardenâs sufficiency-of-the-evidence challenge. The Pinkerton doctrine holds each member of a conspiracy legally responsible for the reasonably foreseeable crimes of fellow conspirators committed in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); see also United States v. Hernandez, 509 F.3d 1290, 1295 (10th Cir.2007) (noting that âthe doctrine of vicarious liability plays a critical role in the context of conspiracy casesâ); United States v. Russell, 963 F.2d 1320, 1322 (10th Cir.1992) (applying doctrine).
The government proved the elements for Pinkerton culpability. As discussed, the government introduced sufficient evidence to convict Mr. Wardell of the conspiracy charge. It also introduced undisputed evidence that Mr. Shields and Mr. Templeman, coconspirators, completed the intended object of the conspiracy â viz., they attacked Mr. Cluff in retaliation for his testimony against Mr. Wardell and Mr. Pursley. See Hernandez, 509 F.3d at 1298 (noting that the defendant is culpable for acts that are within the scope of the conspiracy and reasonably foreseeable by the defendant). Hence, pursuant to the Pink
Furthermore, Mr. Wardenâs conviction under § 1513(b)(1) can be sustained under an aiding and abetting theory, on which the jury was also charged. A reasonable jury could have found from the evidence in support of the conspiracy conviction that Mr. Wardell aided and abetted Mr. Shields and Mr. Templeman in effectuating the assault. See 18 U.S.C. § 2(a) (âWhoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.â). Indeed, this circumstantial evidence established beyond a reasonable doubt that Mr. Wardell âwillfully associate[d] himself with the criminal venture and [sought] to make the venture succeed through some action of his own.â United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir.1997); see also United States v. Wardy, 777 F.2d 101, 106-07 (2d Cir.1985) (affirming conviction under §§ 1513 and 2(a) when defendant, a prisoner, informed intermediary outside of prison that he wanted codefendant to âtake careâ of witness in retaliation for statements to police).
III. Use of Stun Belt
In his pro se filing, Mr. Wardell argues that the district court committed reversible error by requiring him to wear a stun belt during trial.
While a defendant enjoys the âright to appear before the jury unfettered from physical restraints,â this right is not unqualified. United States v. Hack, 782 F.2d 862, 867 (10th Cir.1986). Freedom from restraint helps to preserve, among other constitutional guarantees, âthe due process right to a fair and impartial trial.â United States v. Apodaca, 843 F.2d 421, 430-31 (10th Cir.1988). A district court, however, retains the discretion to take measures to maintain order and security within its courtroom. See Deck v. Missouri, 544 U.S. 622, 632, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (recognizing the âneed to give trial courts latitude in making individualized security determinationsâ); Hack, 782 F.2d at 867 (acknowledging the significant deference given to the trial court in determining whether security measures are necessary regarding a particular defendant). The decision to impose a security measure that physically restrains a defendant during trial âwill not be disturbed on appeal unless that discretion was clearly abused.â Hack, 782 F.2d at 867. Nonetheless, because of the various constitutional concerns that flow from such a decision, it triggers âclose judicial scrutiny.â Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); see also United States v. Durham, 287 F.3d 1297, 1306 (11th Cir.2002) (applying close judicial scrutiny to the use of stun belts).
The standard for determining whether a district court abused its discretion â and, in the process, violated a defendantâs constitutional rights â hinges on the nature and effect of the restraint. For instance, the Supreme Court has deemed visible shackling to be an inherently prejudicial practice, see Deck, 544 U.S. at 635, 125 S.Ct. 2007 (sentencing); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (trial), because it undermines three fundamental legal principles of constitutional origin: (1) the presumption of innocence; (2) a defendantâs ability to participate in his or her own defense; and (3) the dignity of the trial process. Deck, 544 U.S. at 630-32, 125 S.Ct. 2007. Thus, because of the presumed prejudice of visible shackling, id. at 635, 125 S.Ct. 2007, it may only be used when it serves an âessentialâ interest âspecificâ to a particular case. Id. at 628, 633, 125 S.Ct. 2007. Security needs or escape risks ârelated to the defendant on trialâ constitute such an interest. Id. at 633, 125 S.Ct. 2007.
Consistent with the principles confirmed in Deck, we have recognized the district courtâs legal obligation to consider individualized factors in determining whether to deviate from the general rule prohibiting physical restraints. Hack, 782 F.2d at 868. In particular, the district court should consider âthe [defendantâs] record, the crime charged, his physical condition, and other available security measures.â Id. Of course, the âextent to which the security measures are needed should be determined by the trial judge on a case-by-case basis.â Id.
We believe that these principles should apply to stun belts because, as numerous circuits have recognized, â[t]he use of stun belts, depending somewhat on their method of deployment, raises all of the traditional concerns about the imposition of physical restraints.â Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir.2003); see, e.g., Durham, 287 F.3d at 1306. If seen or activated, a stun belt âmight have a significant effect on the juryâs feelings about the defendant.â Allen, 397 U.S. at 344, 90 S.Ct. 1057. It also challenges âthe very dignity and decorum of judicial proceedings that the judge is seeking to uphold.â Id. Put simply, we recognize that requiring a defendant in a criminal trial to wear a
However, despite this potential for prejudice, we have approved the use of a stun belt at trial under certain circumstances. In United States v. McKissick, 204 F.3d 1282 (10th Cir.2000), we found no abuse of discretion in a district courtâs refusal to grant a mistrial after the defendantâs attorney learned that his client, who was charged with firearm and drug possession, was forced to wear a stun belt underneath his clothes. Id. at 1286, 1299. We noted that the district court clearly articulated its reasons for the safety measure, including one intimately related to the security of the courtroom â the possibility of gang members seeking to disrupt the trial proceedings. Id. We then reasoned that the belt was inconspicuous and that âthere [was] no evidence in the record that any member of the jury noticed the stun belt[ ].â Id. Thus, we refused to âpresume prejudice.â Id.
In reaching our conclusion, we relied upon Yates v. United States, 362 F.2d 578 (10th Cir.1966). Yates affirmed the denial of a mistrial because although the defendant entered the courtroom in shackles on one occasion, there was no evidence that âany juror had in fact observed appellant under restraint.â Id. at 579; cf. Hack, 782 F.2d at 867-68 (noting that visible shackles were justified by a substantial need to protect the safety of the court from the violent propensities of defendant and to prevent threatened escape). We did not purport, in McKissick, to address all the constitutional concerns associated with the use of stun belts. What is clear from McKissick, however, is that similar to the restraint of shackling, we should not âpresume prejudiceâ when there is no evidence that the jury noticed the stun belt. McKissick, 204 F.3d at 1299.
Under our precedent, a district courtâs decision to require a defendant to wear a stun belt during a criminal trial would appear ordinarily to pose no constitutional problem when: (1) the court makes a defendant-specific determination of necessity resulting from security concerns; and (2) it minimizes the risk of prejudice by, for instance, concealing the stun belt from the jury. See id.; cf Apodaca, 843 F.2d at 431 (affirming the use of a leg chain when the judge articulated safety reasons and took âprecautions to ensure that any prejudicial effect of the physical restraint was minimizedâ). Other circuits have rejected constitutional claims arising from the compulsory use of a stun belt under similar circumstances. See, e.g., United States v. Fields, 483 F.3d 313, 357 (5th Cir.2007) (finding no abuse of discretion by the district court in requiring the use of a stun-belt restraint on a pro se defendant when the defendant was found to have a history of prison escapes and violence and when the district court minimized the risk of prejudice by permitting the defendant to conceal the stun belt and requiring both sides to remain seated before the jury); United States v. Brooks, 125 F.3d 484, 502 (7th Cir.1997) (approving, inter alia, the use of stun belts because restraint was necessary and the stun belt, which was hidden under clothes, was method of restraint that minimized risk of prejudice); see also United States v. Joseph, 333 F.3d 587, 591 (5th Cir.2003) (âThe district court properly stated the reasons for the use of [a stun belt and shackles]. Further, there is no evidence that the jury was prejudiced by the presence of these restraints, as the stun belt was not activated during the trial, and both the belt and the shackles were kept out of the view of the jury.â).
Even those circuits that have found constitutional error from the use of a stun belt during a criminal trial have applied a similar standard. See Gonzalez, 341 F.3d at
Applying the legal principles outlined above, we reject Mr. Wardellâs challenge to the district courtâs decision to require him to wear a stun belt at trial. The court set out in a written order its justification for requiring Mr. Wardell and his codefendants to wear stun belts:
The nature of the crimes with which the defendants are charged in this case, as well as their histories and characters as known to me, make the use of enhanced security measures necessary and prudent. The devices are concealed on the defendantsâ persons so that they are largely inconspicuous. The use of the devices correspondingly reduces the number of security personnel necessary to be present in the courtroom during the trial and eliminates the need for handcuffs and shackles. Such personnel and physical restraints are inherently more conspicuous and thus more prejudicial to defendants tha[n] the use of stun belts.
R., Vol. II, Doc. 329, at 2 (Findings of Fact and Conclusions of Law Regarding the Use of Stun Belts During Trial, filed Dec. 5, 2005) (footnote omitted). Therefore, âconsidering the totality of the circumstances,â the district court concluded that it could permissibly authorize the use of stun belts. Id.
Under the district courtâs rationale, the conditions that justified the use of stun belts in McKissick are present here. The district court found that the stun belt was a necessary security measure because of the nature of the crimes with which the defendants were charged in this case, as well as their history and character. More generally, the two circumstances that our court and some of our sister circuits have considered important in assessing a trial courtâs use of security restraints â (1) the courtâs articulation of a defendant-specific
Two of Mr. Wardellâs previous convictions were for escape-related crimes. Perhaps more importantly, the nature of the charged offenses â conspiring to and facilitating the brutal attack of the government-adversaryâs witness â suggested the need for heightened security during a joint trial where the victim of the assault would be the key government witness. Furthermore, we give significant weight to the fact that the district court had an opportunity to observe Mr. Wardenâs demeanor and character during the tax-fraud trial.
Mr. Wardellâs decision to represent himself also supported the district courtâs finding of necessity. Mr. Wardenâs pro se status brought with it the privilege of being in closer proximity to the judge, the jurors, and the trial witnesses than a typical defendant. This proximity, in turn, increased the gravity of the safety concerns at issue. See Weaver v. State, 894 So.2d 178, 194 (Fla.2004) (noting that defendantâs âargument that the trial court erred in ordering the use of a stun belt is especially weak in light of his pro se statusâ).
The district court also took adequate steps to minimize the risk of prejudice. It concealed the stun belt under Mr. War-dellâs clothing, rendering the device largely inconspicuous. Although Mr. Wardell takes exception to the district courtâs finding that the stun belts were essentially concealed and not visible to the jury, he offers nothing more than speculation to the contrary. In particular, Mr. Wardell identifies nothing in the record that would indicate that a juror observed the stun belts. Accordingly, we do not hesitate to credit the district courtâs finding concerning the lack of visibility of the stun belts. The district court further found this safety measure to be less compromising than other conceivable alternatives, such as handcuffs, shackles, or additional security guards, given their comparatively heightened visibility. See Fields, 483 F.3d at 357 (noting that âthe court took into account the special problems that physical restraints might pose under Fieldsâs decision to proceed pro se â).
Mr. Wardell also suggests that the wearing of the stun belt itself was constitutionally prejudicial because of the alleged capacity of such devices to produce in the wearer psychological stress and fear due to the wearerâs awareness of the allegedly severe and detrimental physical effects that will occur if the device is actually activated. This argument has been the subject of judicial attention. As one of our sister circuits noted,
[t]he fear of receiving a painful and humiliating shock for any gesture that could be perceived as threatening likely chills a defendantâs inclination to make any movements during trial â including*1297 those movements necessary for effective communication with counsel.
... Wearing a stun belt is [also] a considerable impediment to a defendantâs ability to follow the proceedings and take an active interest in the presentation of his case. It is reasonable to assume that much of a defendantâs focus and attention when wearing one of these devices is occupied by anxiety over the possible triggering of the belt.
Durham, 287 F.3d at 1305-06. However, Mr. Wardell concedes that he did not raise this psychological-impact argument before the district court. Aplt. Supp. Pro Se Br. at 30 (noting that with adequate notice of the district courtâs stun-belt directive defendants âhuould have argued the psychological impact on them, which affected their Sixth Amendment rights and that communication with counsel was limited by the beltâ (emphasis added)).
Under the rigorous plain error standard, Mr. Wardell cannot prevail. The four-part plain error standard is familiar. Under this standard, we may reverse a district courtâs ruling âonly if [the defendant] demonstrates (1) error (2) that is plain and (3) that affected her substantial rights. If these three elements are met, then we may, in our discretion, correct an error that seriously affects the
Mr. Wardell does not identify any Supreme Court or Tenth Circuit decisions that have addressed the psychological-impact argument relative to the mandated use of stun belts, much less any decisions from these two courts that indicate that the district courtâs stun-belt order was error on psychological-impact grounds, and we are not aware of any such decisions. Accordingly, the district courtâs assumed error in ordering Mr. Wardell to wear a stun belt was not obvious and clear. See, e.g., United States v. Poe, 556 F.3d 1113, 1129 (10th Cir.) (holding that plain error standard not satisfied, stating that â[defendant] has pointed to no Supreme Court or Tenth Circuit decisions directly addressing the Guidelines issue he raises, nor do we know of anyâ), cert. denied, â U.S. -, 130 S.Ct. 395, 175 L.Ed.2d 268 (2009). Concerning his psychological-impact argument, Mr. Wardell therefore has not demonstrated his entitlement to relief under the rigorous plain error standard.
In summary, we are sensitive to the potential for prejudice that accompanies the compulsory use of a stun belt at trial. Nonetheless, we cannot conclude that the district court abused its discretion under controlling precedent. The district court appropriately justified the measure through the articulation of defendant-specific security concerns, and it minimized the risk of prejudice, after considering the unacceptability of other, more visible measures. And there is no current well-settled law that would support Mr. War-dellâs stun-belt objection based upon detrimental psychological impact under plain error review.
IV. Severance
Prior to trial, Mr. Wardell and Mr. Pursley filed several motions to sever their trial from that of their alleged coconspirators. They claimed that severance was
âWe review the district courtâs denial of a motion to sever for an abuse of discretion.â United States v. Hall, 473 F.3d 1295, 1302 (10th Cir.2007). Rule 8(b) of the Federal Rules of Criminal Procedure permits an indictment to charge two or more defendants âif they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.â Fed.R.Crim.P. 8(b). This rule expresses the âpreference in the federal system for joint trials of defendants who are indicted together.â Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); see United States v. Zapata, 546 F.3d 1179, 1191 (10th Cir.) (âJoint trials of defendants who are charged together are preferred because they promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.â (internal quotation marks omitted)), cert. denied, - U.S. -, 129 S.Ct. 772, 172 L.Ed.2d 761 (2008), and cert. denied sub nom., â U.S. -, 129 S.Ct. 2069, 173 L.Ed.2d 1145 (2009). Pursuant to Rule 14(a), however, a court âmayâ sever the trial of more than one defendant if joinder âappears to prejudice a defendant or the government.â Fed.R.Crim.P. 14(a).
A defendant seeking to vacate a conviction based upon the denial of a motion to sever nonetheless faces a steep challenge. As an initial matter, we recognize a presumption in a conspiracy trial that coconspirators charged together should be tried together. United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir.2005). Furthermore, because severance is a matter of discretion, a defendant bears the âheavy burdenâ of showing âreal prejudice.â United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir.1984); see United States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir.2009) (noting that âRule 14(a)âs prejudice standard requires a showing of actual prejudiceâ). âPrejudice occurs when there is a serious risk that a joint trial will compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.â Stiger, 413 F.3d at 1197; see Zapata, 546 F.3d at 1191.
To determine whether the district court abused its discretion in denying a severance motion, we evaluate the following, non-exhaustive list of factors (the âMcConnell factorsâ):
1) the likelihood that the co-defendant would in fact testify at the movantâs severed trial and waive his Fifth Amendment privilege; 2) the significance of the testimony in relation to the defendantâs theory of defense; 3) the exculpatory nature and effect of such testimony; 4) the likelihood that the co-defendantâs testimony would be impeached; 5) the extent of prejudice caused by the absence of the testimony; 6) the effect of a severance on judicial administration and economy; [and] 7) the timeliness of the motion.
McConnell, 749 F.2d at 1445; see also Hall, 473 F.3d at 1302. The McConnell factors support the district courtâs denial of each of Mr. Wardellâs severance motions.
A. Early Severance Motions
Several months prior to trial, Mr. Wardell filed a motion to sever. Mr. Pursley joined this motion. Mr. Wardell later amended his motion and Mr. Pursley con
In considering this severance ruling in the context of Mr. Pursleyâs appeal, we addressed and rejected an argument essentially identical to the one Mr. Wardell presents here. See Pursley II, 577 F.3d at 1215-16. There, we concluded that the district court properly applied the McConnell factors, principally basing our decision on the absence, at the time the motions were filed, of affidavits from Mr. Shields and Mr. Templeman validating Mr. War-dellâs assertions â that is, indicating their intention to invoke their Fifth Amendment privilege in a joint trial, stating that they would testify in a severed trial, and identifying the exculpatory content of their testimony. Id. On this severance issue, Mr. Pursley is âidentically situatedâ to Mr. Wardell; accordingly, we consider our pri- or ruling upholding the district court to be binding upon us here as law of the case. United States v. Parada, 577 F.3d 1275, 1279-80 (10th Cir.2009); see LaHue, 261 F.3d at 1010; United States v. Corrado, 227 F.3d 528, 533 (6th Cir.2000) (applying law-of-the-case doctrine to decide legal challenges previously considered and rejected during codefendantâs appeal); United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991) (âWe have previously found the law of the case doctrine to be applicable when the appeal of one co-defendant is decided prior to the appeal of the other co-defendant, if both were convicted at the same trial.â). Therefore, viewing our prior severance ruling in Pursley II as controlling, we reject Mr. Wardellâs argument.
Another contention that Mr. War-dell raised in his first severance motion and that he presses on appeal is that he was prejudiced by the disparity between the incriminating evidence against him, on the one hand, and against Mr. Shields and Mr. Templeman, on the other. Mr. War-dellâs argument is without merit. We recognize the Supreme Courtâs declaration that a risk of prejudice âmight occurâ when prejudicial evidence that would be inadmissible against a defendant, if tried alone, is admitted against a codefendant in a joint trial. Zafiro, 506 U.S. at 539, 113 S.Ct. 933. We also acknowledge that such a risk may be âheightenedâ when âmany defendants are tried together in a complex case and they have markedly different degrees of culpability.â Id. Nonetheless, the nearly insuperable rale in this circuit is that âa defendant cannot obtain severance simply by showing that the evidence against a co-defendant is more damaging than the evidence against herself.â Dazey, 403 F.3d at 1165; see also Caldwell, 560 F.3d at 1221 (âRule 14(a)âs prejudice standard requires a showing of actual prejudice, which is not satisfied merely by pointing to a ânegative spill-over effect from damaging evidence presented against codefendants.â â (quoting United States v. Wacker, 72 F.3d 1453, 1468 (10th Cir.1995))); Hack, 782 F.2d at 871 (â[A] mere disparity in the evidence from a quantitative standpoint against each defendant in a conspiracy case, without more, provides no justification for severance.â).
Mr. Wardellâs prosecution did not constitute an extraordinary instance where prejudice would have been manifested from evidentiary and culpability disparities. Mr. Wardell was charged with the same
The district court also took steps to minimize any spill-over prejudice. The district court instructed the jury to give separate and individual consideration to each charge against each defendant. See Hack, 782 F.2d at 871 (holding that the district court did not abuse its discretion in denying the defendantâs request for severance because the district court nullified any prejudicial error when it repeatedly admonished the jury throughout the trial to consider the evidence only against the defendant to whom it related and at the end of trial gave the jury instructions that admonished the jury to consider separately each offense and evidence in support of each offense). Although Mr. Wardell complains that the jury impermissibly attributed to him the far more damaging actions and statements of his coconspirators, the district court cautioned the jury that acts or statements, which may have been performed or made âoutside the presence of a defendant and even done or said without the defendantâs knowledge, ... should be examined with particular care by [the jury] before considering them against a defendant who did not do the particular act or make the particular statement.â Dist. Ct., No. 05-342, Doc. 607, at 30 (D.Colo.) (Jury Instructions, dated Dec. 12, 2005).
These measures negated any risk of prejudice. See Zafiro, 506 U.S. at 539, 113 S.Ct. 933 (â[L]ess drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.â); Dazey, 403 F.3d at 1165 (finding that no severance was required in a complex, multi-defendant trial because the âjury was appropriately instructed that each count was a separate crime and that they were to consider the culpability of each defendant separatelyâ); Cardall, 885 F.2d at 668 (âWe believe that the trial court properly admonished the jury and, likewise, that the jury properly fulfilled its task.â). Put simply, the district court correctly applied the general rule that disparity in evidence, and in culpability, does not mandate severance in a conspiracy trial involving overlapping facts and proof. See United States v. Ray, 370 F.3d 1039, 1045 (10th Cir.2004) (applying rule even when government introduced evidence of murder and torture by alleged coconspirators in complex, 23-day trial involving drug conspiracy charges), vacated in part on other grounds, 543 U.S. 1109, 125 S.Ct. 995, 160 L.Ed.2d 1035 (2005); United States v. Emmons, 24 F.3d 1210, 1218-19 (10th Cir.1994) (applying rule).
B. Renewed Severance Motion
Mr. Wardell and Mr. Pursley filed a renewed motion to sever one business day before trial. The renewed motion provided declarations from Mr. Templeman and Mr. Shields stating that: (1) they would testify if Mr. Warden's trial was severed from their trial, but would not testify in a joint trial; (2) they did not
We rejected the challenge of Mr. War-dellâs codefendant, Mr. Pursley, to the district courtâs denial of the renewed severance motion. Pursley II, 577 F.3d at 1216-19. More specifically, we held that the district court did not abuse its discretion and that it properly applied the McConnell factors. Id. at 1216. In particular, the district court reasonably determined that the proposed testimony lacked the requisite substance to generate prejudice and that administrative considerations relating to the late filing of the severance motion â one business day before trial-also supported the district courtâs decision. Id. at 1216, 1218-19. Our ruling in Pursley II is law of the case here. See, e.g., LaHue, 261 F.3d at 1010. On that basis, we reject Mr. Wardellâs challenge to the district courtâs denial of his renewed severance motion.
C. Severance Motions Piled During Trial
On the last day of witness testimony, Mr. Wardell and Mr. Pursley filed their final motion to sever. This motion provided new, somewhat more expansive declarations from Mr. Shields and Mr. Temple-man. For the most part, each declaration identified specific inculpatory statements that Mr. Cluff and Mr. Hoskins â an inmate who was in Mr. Wardellâs cell at the time of the assault â attributed to Mr. Wardell and Mr. Pursley. Mr. Shields and Mr. Templeman then indicated that upon severance they would testify that neither Mr. Wardell nor Mr. Pursley made any such statements on the day of the assault. Again, the district court denied this motion. In Pursley II, we held that the district court did not abuse its discretion in doing so. Pursley II, 577 F.3d at 1219. We are bound by that ruling here under the law of the case doctrine. See, e.g., LaHue, 261 F.3d at 1010.
V. Sentencing
Mr. Wardell argues that the district court lacked a factual basis to apply two sentencing adjustments â an adjustment for causing physical injury with the purpose of obstructing the administration of justice, pursuant to U.S.S.G. § 2J1.2(b)(l)(A), and a leader or organizer adjustment, pursuant to U.S.S.G. § 3Bl.l(c). We reject both challenges.
At sentencing, the district court overruled Mr. Wardellâs objections to the applicability of these two adjustments, adopting the PSRâs reasoning and the governmentâs sentencing statement. The district court also found that the factual predicates for the § 2J1.2(b)(l)(A) and § 3Bl.l(c) adjustments âwere resolved against the defendant at trial, either by the court or by the jury, and ... are supported by at least a preponderance of the evidence.â R., Vol. XVII, Tr. at 22 (Sentencing Hearing, dated Mar. 17, 2006). Mr. Wardellâs contentions constitute challenges to the procedural reasonableness of his sentence â the calculation of his Guidelines range. See United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.2008) (noting that procedural reasonableness relates to, inter alia, âwhether the district court incorrectly calculated or failed to calculate the Guidelines sentenceâ); United States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir.2006) (âA sentence cannot, therefore, be considered reasonable if the manner in which it was determined was unreasonable, i.e., if it was based on an improper determination of the applicable Guidelines range.â). In determining the propriety of such calculations, we review legal questions de novo and
A. Obstruction-of-Justice Adjustment
Section 2J1.2(b)(l)(A) of the Guidelines provides for an eight-level increase in a defendantâs offense level if the offense involved causing or threatening to cause physical injury to a person or property damage in order to obstruct the administration of justice. The commentary in the Guidelines lists 18 U.S.C. § 1513 as one of the statutes to which the adjustment applies, and it expressly states that the eight-level adjustment is applicable to an offense that involves âbodily injury or property damage in retaliation for providing testimony, information or evidence in a federal proceeding.â U.S.S.G. § 2J1.2 cmt. statutory provisions, background; see also United States v. Calvert, 511 F.3d 1237, 1243 (9th Cir.2008) (âThe placement of certain prohibited acts in this chapter [73 of title 18, including § 1513] strongly indicates that the intent to commit such an act amounts to an intent to obstruct justice.â); United States v. Gallimore, 491 F.3d 871, 876 (8th Cir.2007) (âIt is apparent from the guidelines and commentary that the Sentencing Commission was concerned that retaliation against a witness for past testimony was likely to interfere with the effective administration of justice.â (footnote omitted)).
Our focus here is on the district courtâs factual determination that Mr. Wardellâs conduct warrants the adjustment. Accordingly, we review for clear error. See United States v. Voss, 82 F.3d 1521, 1532 (10th Cir.1996) (reviewing obstruction adjustment under U.S.S.G. § 2J1.2(b)(2) concerning âsubstantial interference with the administration of justice,â and noting â[t]he district courtâs decision raises factual questions that we review for clear errorâ); cf. United States v. Hankins, 127 F.3d 932, 934 (10th Cir.1997) (assessing obstruction of justice adjustment under U.S.S.G. § 3C1.1 and noting that âwe review the district courtâs factual determinations concerning the obstruction of justice enhancement for clear error onlyâ); cf. also Calvert, 511 F.3d at 1240-41 (noting where defendant argued that obstruction of justice enhancement of § 2J1.2 did not apply â[wjithout the existence of some pending judicial proceeding at the moment of retaliationâ that defendant âchallenges only the district courtâs interpretation of the Guidelines in calculating his sentence, a question which we review de novo â).
The district court did not clearly err in applying the adjustment. Mr. Wardell was convicted of conspiracy to retaliate against a witness and actual retaliation against a witness. Given the evidence before it, in convicting Mr. Wardell of the § 1513(b)(1) offense, the jury necessarily found the factual prerequisite for the adjustment â that Mr. Wardell knowingly threatened to and, in fact, did cause Mr. Cluff to suffer bodily injury because Mr. Cluff testified against Mr. Wardell in the tax-fraud case. Accordingly, the district court could reasonably apply the adjustment to Mr. Wardell. See United States v. Smith, 387 F.3d 826, 831 (9th Cir.2004) (noting that the juryâs findings in convicting defendant under § 1513(b)(2) for threatening to cause bodily injury to witness with intent to retaliate âprovide[d] adequate support for the § 2J1.2(b)(l) offense level increaseâ); United States v. Levy, 250 F.3d 1015, 1017-18 (6th Cir.2001) (affirming § 2J1.2(b)(l) adjustment when defendant convicted under § 1513(b)).
Indeed, Mr. Wardell endorses this analysis by negative implication. He rests his entire challenge on the ostensible success of his sufficiency-of-the-evidence challenges. Mr. Wardell argues that, â[i]n as much as the Government failed to establish the existence of a conspiracy at trial,
B. Leader or Organizer Adjustment
The district court found Mr. Warden to be an âorganizer and leaderâ within the meaning of U.S.S.G. § 3Bl.l(e). R., Vol. XVII, Tr. at 23 (emphasis added). Because a defendantâs status as an organizer or leader involves a sophisticated factual determination, we review the district courtâs finding and its application of this adjustment to Mr. Wardell for clear error. See United States v. Wilfong, 475 F.3d 1214, 1218 (10th Cir.2007); United States v. Cruz Camacho, 137 F.3d 1220, 1223-24 (10th Cir.1998). Under this standard, we uphold the district courtâs application of the upward adjustment.
A two-level adjustment under § 3Bl.l(c) applies whenever âthe defendant was an organizer, leader, manager, or supervisor in any criminal activity [involving less than five participants and that is not otherwise extensive].â U.S.S.G. § 3Bl.l(c). Functioning as a leader requires an element of control over underlings, particularly in the form of recruitment and direction. See Cruz Camacho, 137 F.3d at 1224-25 (finding the defendant had a âleadership roleâ when the defendant recruited and directed coconspirators). To qualify as an organizer, however, no control is necessary. United States v. Egbert, 562 F.3d 1092, 1103 (10th Cir.2009); United States v. Valdez-Arieta, 127 F.3d 1267, 1272 (10th Cir.1997); see also United States v. Tejada-Beltran, 50 F.3d 105, 112 (1st Cir.1995) (noting that the âdisjunctive usageâ of leader or organizer âcannot be written off as linguistic happenstanceâ and that â[w]hile the term âleaderâ implies the exercise of some degree of dominance or power in a hierarchy, and also implies the authority to ensure that other persons will heed commands ... the term âorganizerâ has a different connotationâ). Instead, a defendant may be deemed an organizer under § 3B1.1 for âdevising a criminal scheme, providing the wherewithal to accomplish the criminal objective, and coordinating and overseeing the implementation of the conspiracy even though the defendant may not have any hierarchical control over the other participants.â Valdez-Arieta, 127 F.3d at 1272; see also Tejada-Beltran, 50 F.3d at 112 (âThe key to determining whether a defendant qualifies as an organizer is not direct control but relative responsibility.â).
The district courtâs finding that Mr. Wardell was an organizer was not clearly erroneous. Therefore, we need not (and do not) opine on the propriety of the district courtâs distinct finding that Mr. War-dell also was a leader. See United States v. Tagore, 158 F.3d 1124, 1131 & n. 5 (10th Cir.1998) (declining to address appellantâs argument contesting role as leader of conspiracy after finding defendant to be organizer).
Although the district court did not provide a detailed analysis, its ultimate factual conclusion represents a permissible view of the evidence presented at trial and outlined in the PSR. Consistent with the juryâs verdict, that evidence established â ⢠at the very least, by a preponderance' â ⢠that Mr. Wardell conspired with Mr. Pursley (a) to encourage Mr. Shields and Mr. Templeman to participate in an assault on Mr. Cluff, (b) to secure their presence in a
More specifically, Mr. Cluff testified that Mr. Wardell repeatedly attempted to deter him from testifying in the tax-fraud case. When these efforts proved unsuccessful, Mr. Wardell worked with Mr. Pursley to enlist Mr. Cluffs eventual attackers, Messrs. Shields and Templeman. Mr. Wardell falsely identified the two men as witnesses on his behalf in the tax-fraud case and along with Mr. Pursley caused a writ to be issued to bring about their transfer to the courthouse. During an apparently planned encounter with Mr. Shields on a prisoner transfer bus, Mr. Wardell participated (albeit to a limited extent) along with Mr. Pursley in a furtive, whispered conversation with Mr. Shields. Subsequently, Mr. Wardell actively coordinated with Mr. Pursley a subterfuge involving the making of loud noises to conceal and effectuate the assault on Mr. Cluff â a scheme to muffle his screams of pain and pleas for help. Following the assault, Mr. Wardell effectively confirmed his organizational role by telling Mr. Cluff â[tjhatâs what you get, you fucking rat.â R., Vol. XII, Tr. at 472 (internal quotation marks omitted).
To be sure, Mr. Pursley also was responsible for coordinating the conspiracy and was probably more responsible for the planning than Mr. Wardell. Nonetheless, more than one person in a conspiracy can qualify under the Guidelines as an organizer. U.S.S.G. § 3B1.1 cmt. n. 4; see, e.g., United States v. Johnson-Dix, 54 F.3d 1295, 1310 (7th Cir.1995) (noting that âit is clear that the enhancement may apply to more than one person in any criminal organizationâ). The evidence supporting the district courtâs factual determination is consonant with the evidence found in other judicial decisions applying the organizer adjustment. See, e.g., United States v. Brown, 315 F.3d 929, 932 (8th Cir.2003) (affirming adjustment under § 3Bl.l(e) for âorganizing the criminal activityâ when defendant recruited retail clerk in advance to pass off counterfeit bills and compensated clerk after transaction); Valdez-Arieta, 127 F.3d at 1272-73 (affirming organizer adjustment under § 3Bl.l(c) when defendant provided sources to supply drugs, directed suppliers to deliver particular drugs, and decided on financial arrangements concerning deliveries); United States v. Williams, 894 F.2d 208, 214 (6th Cir.1990) (holding that evidence was sufficient to support two-level organizer adjustment, where defendant admitted to undercover officer that it was his fault that earlier cocaine transaction had fallen through, negotiated meeting through phone calls he initiated, and personally delivered cocaine to officer, although defendant obtained cocaine he was going to sell from another source); cf. United States v. Katora, 981 F.2d 1398, 1402-03 (3d Cir.1992) (reversing organizer adjustment and commenting that âthe district courtâs findings indicate that [the defendants] were âorganizersâ only in the sense that they were âplannersâ of the offenseâ and that § 3B1.1 does not contemplate that district courts will âenhance the sentences of a duo when they bear equal responsibility for âorganizingâ their own commission of a crime.â (emphasis added)).
Citing no case law, Mr. Wardell argues that the adjustment was inappropriate because âthe Government never concretely showed such leadership in its case in chief.â Aplt. Br. at 33 (emphasis added). At most, according to Mr. Wardell, âthe conduct summarized at Mr. Wardellâs sentencing hearing [was] part and parcel of a tangential affiliation with the putative conspiracy.â Id. For at least two reasons, however, Mr. Wardellâs argument fails.
VI. Additional Issues Briefed by Mr. Wardell in His Pro Se Capacity
In addition to the stun belt contention discussed above, acting pro se, Mr. War-dell presents numerous other contentions of error. With one exception, we need not give these contentions more than summary treatment; they are wholly lacking in merit and we reject them.
âThe refusal to issue a subpoena pursuant to Rule 17(b) is reviewed for an abuse of discretion.â Pursley II, 577 F.3d at 1229. That means âwe consider the circumstances and correctnessâ of the district courtâs rulings regarding the issuance of particular subpoenas âunder the abuse of discretion standard.â United States v. Greschner, 802 F.2d 373, 378 (10th Cir.1986). However, the inquiry here relates to whether the procedure that the district court used to elicit the necessity information â quite apart from the merits of any particular subpoena request or set of subpoena requests â itself effected a violation of Rule 17(b)âs terms. That inquiry seemingly presents a legal question that we would review de novo. Cf. id. at 379 (tacitly applying de novo review to the question of whether the district courtâs conduct violated Rule 17(b)âs ârequire[ment] [that] trial courts consider the motions ex parte â); cf. also United States v. Friday, 525 F.3d 938, 948 (10th Cir.2008) (âOrdinarily, a district courtâs order dismissing an indictment is reviewed for abuse of discretion, but if the dismissal is based on the courtâs interpretation of governing statutes, we review it de novo.â (internal quotation marks omitted)), cert. denied, - U.S. -, 129 S.Ct. 1312, 173 L.Ed.2d 595 (2009); Sac and Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1258 (10th Cir.2001) (noting that a district courtâs necessary or indispensable parties rulings under Fed.R.Civ.P. 19 ordinarily are reviewed for an abuse of discretion but â[a]ny legal conclusions underlying a district courtâs Rule 19 determinations, however, are reviewed de novoâ); United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1164 (10th Cir.1999) (âGenerally, a district courtâs grant of a motion in limine is reviewed for abuse of discretion. However, in granting the governmentâs motion in limine, the district court reached the legal conclusion that ... entrapment by estoppel was not a permissible defense as a matter of law.... We therefore review de novo th[at] district court[ ] decision .... â (citations omitted)). Ultimately, however, we need not definitively opine on which of those two standards (i.e., abuse of discretion or de novo) should apply to Mr. Wardellâs procedural challenge; as we explain below, we conclude that Mr. Wardell has forfeited the issue. Therefore, Mr. Wardell must pursue relief by running the rigorous gauntlet of plain error review.
Although not extensively briefed, Mr. Wardell presents a contention of procedural error related to the district courtâs denial of his subpoena requests. See Aplt. Supp. Pro Se Br. at 95. In particular, Mr.
In Pursley II, we âexpress[ed] very serious concerns regarding the approach the [district] court took in providing Mr. Pursley with another opportunity to demonstrate necessityâ and indeed assumed that the approach ran afoul of our own precedent that recognizes that Rule 17(b) imposes an ex parte requirement. Pursley II, 577 F.3d at 1231 n. 17; see Greschner, 802 F.2d at 379 (noting that Rule 17(b) ârequire[s] the trial court to consider the motions ex parte â and that the trial court âviolatedâ the rule âby allowing two Government attorneys to attend the [subpoena] hearingâ). Nevertheless, under the unique universe of facts found in Pursley II, we concluded that Mr. Pursley waived any possible appellate challenge to the courtâs assumed violation of Rule 17(b)âs ex parte strictures. See Pursley II, 577 F.3d at 1231 n. 17. In particular, we noted that Mr. Pursley volunteered to offer his necessity rationale in open court with the government present, never objected to the governmentâs presence based on Rule 17(b), and did not present in his brief to this court a sufficiently intelligible challenge based upon this issue to preserve it. Id.
To a large degree, Mr. Wardell operated in tandem with Mr. Pursley in seeking approval of the subpoena requests â and, indeed, allowed Mr. Pursley to play the lead part in the endeavor. In material respects, however, Mr. Wardell is not similarly situated to Mr. Pursley with regard to the ex parte 17(b) issue. Although he did not do so in great detail, Mr. Wardell did adequately present the ex parte issue in his appellate filing. Furthermore, although he briefly engaged in a dialogue with the district court about desired witnesses (although with no appreciable effect on the merits of the necessity issue), Mr. Wardell never personally volunteered to make his necessity showing in the governmentâs presence. Lastly, Mr. Wardell ultimately did object to the district courtâs necessity inquiries on ex parte Rule 17(b) grounds. See R., Vol. XII, Tr. at 635 (âIf I can interject. Rule 17 requires ex parte applications, and I think we are getting a little â [government counsel] is here. I think we are entitled to ex parte communications.â). These distinctions between the conduct of Mr. Wardell and Mr. Pursley make a difference on the Rule 17(b) issue with respect to waiver. As we noted in Greschner, âwe must consider the possibility of waiver with cautionâ when defendants are proceeding pro se. Greschner, 802 F.2d at 380. Accordingly, we conclude that Mr. Wardell (unlike Mr. Pursley) has not waived the Rule 17(b) issue.
However, that does not mean that we will review the district courtâs purported error under a de novo standard (or even for an abuse of discretion). In Pursley II, we commented in passing that Mr. War-dellâs Rule 17(b) objection was âarguably untimely.â Pursley II, 577 F.3d at 1231 n. 17. Now that the matter is squarely before us, we conclude that Mr. Wardellâs objection was in fact untimely. Consequently, we review under the rigorous plain error standard.
A forfeiture implicating plain error review does not just occur when a litigant completely fails to object but also
Under the rigorous plain error standard, outlined in Part III swpra, Mr. Wardell cannot prevail. Although ultimately we need not definitively decide the point, we assume that the district court erred under Rule 17(b) in conducting the open court inquiry into Mr. Wardenâs necessity rationale and that the error was obvious and clear. However, Mr. Wardell has made absolutely no showing that the courtâs approach affected his substantial rights, as he was obliged to under the third prong of plain error review. See United States v. Meriwether, 486 F.2d 498, 506-07 (5th Cir.1973) (noting that âalthough the presence of the Assistant United States Attorney at application proceedings held under Rule 17(b) violates the rule,â âto obtain a reversal of the conviction, defendant is required to show that he was prejudiced by the failure to comply with the rule,â and concluding that defendant âfailed to make such a showingâ); see also United States v. Hauk, 412 F.3d 1179, 1194-95 (10th Cir.2005) (discussing the third prong of the plain error test, which requires a showing that the alleged error affected substantial rights). For example, Mr. Wardell makes no attempt to link the denial of the subpoenas to the district courtâs decision to allow the government to be present. Cf. United States v. Abreu, 202 F.3d 386, 391 (1st Cir.2000) (holding that the district court was âin error in not handling the entire application [for defense expert services] on an ex parte basisâ and that on remand the court should hear ex parte âonly new matters that counsel ... refrained from presenting before on grounds of privilege or confidentialityâ and âthen reconsider whether it should grant
CONCLUSION
For the foregoing reasons, we reject each of Mr. Wardenâs challenges on appeal. Accordingly, we AFFIRM the district courtâs judgment.
. Unless otherwise noted, when citing to Title 18 of the United States Code, we cite to the 2005 version, which was in force at the time of the events giving rise to this action.
. The district court calculated Mr. Wardellâs Guidelines sentence using the 2005 version of the U.S.S.G. The parties have voiced no concerns regarding that choice and accordingly we reference the 2005 version here.
. The maximum term of imprisonment for the retaliation conviction was ten years. See 18 U.S.C. § 1513(b). With respect to the conspiracy conviction, the district court concluded that the maximum statutory penalty is ten years rather than five years because of the effect of the combined provisions of 18 U.S.C. §§ 371, 1513(b)(2), and 1513(e). Because Mr. Wardell does not challenge this latter analysis, we need not determine whether the district court properly applied 18 U.S.C. § 1513(e), rather than 18 U.S.C. § 371, to set the maximum penalty for the conspiracy conviction.
. Since we have granted Mr. Wardell's counsel permission to withdraw, allowed Mr. War-dell to file a supplemental brief, and now deny Mr. Wardell relief on this appeal (for the reasons outlined herein), we deny Mr. War-dell's pending motion for self-representation as moot.
. Mr. Wardell argues that because his conspiracy conviction was not grounded in sufficient evidence, his retaliation conviction also fails as a matter of law. As noted below, as to Mr. Wardellâs conspiracy conviction, we conclude to the contrary; we discern sufficient evidence. Therefore, this legal argument regarding the retaliation conviction, which is predicated on the purported fatal evidentiary infirmities of the conspiracy conviction, cannot prevail. In addition, as will be explicated shortly, Mr. Wardell's more direct challenge to the proof supporting his retaliation conviction suffers a similar fate; it fails.
. In affirming the district courtâs judgment in the appeal of Mr. Wardell's codefendant, Mr. Shields, we concluded that "[t]he evidence of a conspiracy was overwhelming.â Shields, 219 Fed.Appx. at 810. However, in listing the members of the conspiracy in support of that conclusion, we did not mention Mr. War-dell. Id. Our silence regarding Mr. Wardellâs participation in the conspiracy does not of course amount to a conclusion that he was not involved in the conspiracy. But our silence likewise does not validate the contention that he was involved in the conspiracy. Accordingly, we do not consider our conspiracy conclusion in Mr. Shieldsâs appeal to be binding law of the case regarding Mr. War-dellâs sufficiency-of-the-evidence challenge. See, e.g., United States v. LaHue, 261 F.3d 993, 1010 (10th Cir.2001) ("[Wjhen a rule of law has been decided adversely to one or more codefendants, the law of the case doctrine precludes all other codefendants from relitigating the legal issue.â (internal quotation marks omitted)). We proceed to reach the merits of Mr. Wardell's challenge.
. Mr. Wardell properly preserved his sufficiency-of-the-evidence challenge. Mr. War-dell moved for a judgment of acquittal under Fed.R.Crim.P. 29(a) at the close of the government's case-in-chief, arguing that the evidence was insufficient to establish his role in any conspiratorial agreement. This motion was denied. It was renewed at the close of all of the evidence, and again denied. Mr. Wardell then filed a post-trial motion for a judgment of acquittal, pursuant to Fed. R.Crim.P. 29(c), which suffered a similar fate.
. Mr. Wardell argues that the governmentâs evidence of an agreement is "dubious at bestâ because although the government "relied heavily on the proposition that the conspiracy began on or about May 12, 2005, when Defendants Shawn Shields and Vernon Templeman were brought to Denver pursuant to writs filed in the tax case,â another exhibit allegedly demonstrated that "Mr. Templeman was brought on May 11, 2005.â Aplt. Br. at 28. This argument lacks merit for several reasons. First, assuming the validity of such an exhibit, the indictment explains that the non-exhaustive list of overt acts it describes commenced "on or aboutâ â rather than "onâ â May 12, 2005. R., Vol. I, Doc. 1, at 2 (Indictment, dated July 26, 2005). See, e.g., United States v. Charley, 189 F.3d 1251, 1272 (10th Cir.1999) (noting that "on or aboutâ language in indictment allows for offense to be committed within a few weeks of the specified date). Second, even if Mr. Templeman was brought to the courthouse on May 11, 2005, rather than on May 12, 2005, this fact in no way undermines the inference of a conspiratorial agreement from the writ that secured Mr. Templemanâs presence. Third, even if there was some doubt as to Mr. Templemanâs involvement in the conspiratorial agreement, the government introduced sufficient evidence to establish Mr. Warden's participation in an agreement with Mr. Pursley and Mr. Shields.
. As we noted in Pursley II, "Shortyâ was Mr. Shieldsâs nickname. See Pursley II, 577 F.3d at 1213 n. 5.
. Although Mr. Wardell suggests on appeal that these statements were inadmissible, he never raised a contemporaneous objection at trial. He has also failed to adequately brief this issue. See Fed. R.App. P. 28(a)(9); Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir.2007) (noting that "cursory statements, without supporting analysis and case law, fail to constitute the kind of briefing that is necessary to avoid application of the forfeiture doctrineâ); Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n. 4 (10th Cir.2004) ("Scattered statements in the appellantâs brief are
. In connection with his stun-belt argument, Mr. Wardell contends that he was prejudiced by what he calls the district courtâs "bizarre seating arrangement," under which all defendants were facing the jury. Aplt. Supp. Pro Se Br. at 20 (all capitals typeface omitted). Initially, we do not discern any indication in the record that the district court adopted this seating arrangement due to security concerns; instead, the number of litigants seemed to be the decisive factor. R., Vol. IX, Tr. at 14 (Pretrial Conference, dated Mar. 27, 2006) (explaining to Mr. Wardell that the seating arrangement of the prior tax-fraud trial could not be used "because we have literally twice as many people"). Moreover, not only did Mr. Wardell not object to this seating arrangement after the district court explained the reasoning behind it, he affirmatively indicated that it was "Okayâ or acceptable. Id. at 15. Therefore, Mr. Wardell has waived any purported constitutional objection to the seating arrangement. See, e.g., United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir.2009).
. At least one state supreme court has permanently banned stun belts from its courtrooms, reasoning that âother forms of restraint ... can do the job without inflicting the mental anguish that results from simply wearing the stun belt and the physical pain that results if the belt is activated.â Wrinkles v. State, 749 N.E.2d 1179, 1195 (Ind.2001). Of course, faithful adherence to precedent from the United States Supreme Court, as well as our own case law, forecloses reliance upon this logic.
. Admittedly, we would harbor some concern if the district court relied upon Mr. War-dellâs myriad convictions for fraud-related offenses, each of which appears to have lacked a violent component. Cf. Miller, 531 F.3d at 346 (â[W]e are troubled by the governmentâs argument on appeal that the use of a stun belt was warranted because [the defendant] was facing significant prison time and because [the defendant] had been evasive and untruthful in a prior hearing before the district court. Although we do not condone [the defendant's] behavior with the district court, neither of these factors justifies the use of physical restraints.â). But such reliance is not explicit (much less patent) from the record and thus we operate on the premise that the district court focused on Mr. Wardellâs relevant escape-related crimes and the overall circumstances of this case, including the courtâs impressions of Mr. Wardellâs personal demeanor.
. Mr. Wardell complains that he was "given no advance notice of the intended use of the stun beltâ and, consequently, he was "ill-preparedâ to raise the psychological-impact argument before the district court. Aplt. Supp. Pro Se Br. at 30. More specifically, Mr. Wardell contends the he did not receive the government's motion proposing that the defendants be required to wear stun belts until some period after the United States Marshals placed a stun belt on him immediately prior to the start of his trial. Id. at 21. Assuming arguendo that such a notice complaint could ever relieve Mr. Wardell of the burdens of plain error review where the issue is enhanced security procedures, this would not be a case warranting such relief. Although Mr. Wardell claims to have not received the governmentâs motion prior to the day of trial, he was aware of its existence because it was discussed in a pretrial conference a few days before the trial started. R., Vol. IX, Tr. at 19. Significantly, in that discussion, the court denied the governmentâs motion as moot, on the basis that it would sua sponte fashion security measures for the trial. Id. Therefore, Mr. Wardell was well aware that some security measures would be forthcoming. Furthermore, there is no indication in the record that Mr. Wardell raised his notice complaint before the district court and sought a continuance or some other form of relief due to the purported prejudice arising from the lack of notice. Cf. Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 2203, 171 L.Ed.2d 28 (2008) ("We recognize that there will be some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the Government. The more appropriate response to such a problem is not to extend the reach of Rule 32(h)âs notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial.â). Nor did Mr. Wardell subsequently seek reconsideration of the district courtâs stun-belt order on psychological-impact grounds, despite the fact that he was forced to wear the stun belt throughout the trial, not just on the first day. Accordingly, Mr. War-dellâs notice complaint is unavailing. Cf. United States v. Lopez-Pena, 912 F.2d 1542, 1546 (1st Cir.1989) ("Ordinarily, the law ministers to the vigilant, not to those who sleep upon their rights. In consequence, a litigant ... must usually stake out his opposition to a trial courtâs ruling on pain of forfeiting any right subsequently to complain.â).
. In one sentence in his brief, Mr. Wardell also purports to raise an Eighth Amendment challenge to the district courtâs stun-belt order. See Aplt. Supp. Pro Se Br. at 20. However, "[ujnder our precedent, this skeletal reference is insufficient to raise ... a discrete appellate issue.â Pursley II, 577 F.3d at 1231 n. 17. Even if we were to consider his Eighth Amendment argument, because Mr. Wardell did not object to the stun-belt order on this ground before the district court, we would again be reviewing for only plain error. As with his Fifth and Sixth Amendment challenges, we would conclude relief was not warranted because any error by the district court was not obvious and clear.
. We reach our conclusion to reject these contentions after thorough consideration of the record and the relevant legal authorities, including our recent decision involving the appellate challenges of Mr. Warden's codefendant, Mr. Pursley. Some of Mr. Wardellâs pro se contentions are foreclosed under the law of the case doctrine by that decision. For example, Mr. Wardell argues that the district court erroneously admitted Mr. Cluff's out-of-court statements as excited utterances under Fed.R.Evid. 803(2) and that their admission also was in violation of the Sixth Amendment's Confrontation Clause. In Pursley II, we concluded that the district court did not err in finding that the statements were excited utterances. Pursley II, 577 F.3d at 1219â 22. Although contrary to the district court's view, we held that the statements were not thereby immune from Confrontation Clause challenge. Id. at 1222-24. Nonetheless, we determined that their admission in this case did not give rise to a Confrontation Clause violation because Mr. Cluff was available for cross-examination (i.e., there was an opportunity to confront him). Id. at 1224-25. Our analysis and rulings in Pursley II apply with full force to Mr. Warden's arguments and are law of the case, see, e.g., LaHue, 261 F.3d at 1010. Therefore, his contentions of error concerning the admission of Mr. Cluff's out-of-court statements must fail. Similarly, Mr. Wardell challenges the admission of a portion of the opening statement from the tax-fraud trial during which Mr. Pursleyâs counsel refers to Mr. Cluff as the governmentâs "star witness.â See Pursley II, 577 F.3d at 1225-26. In disposing of Mr. Pursley's appeal, although assuming arguendo that there was error in the admission of the exhibit, we ultimately rejected his challenge, holding that any such error was harmless. Id. at 1226-27. We can see no reason why that ruling should not bind us here as law of the case. Furthermore, other contentions of error advanced by Mr. Wardell are patently frivolous. For instance, he contends that the district court judge should have recused because inter alia federal marshals testified during the trial and they also "provide securityâ to the district judge and the "assault occurred in the very same courthouse where the district judge works.â Aplt. Supp. Pro Se Br. at 41. Under 28 U.S.C. § 455(a), "[a]ny justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.â 28 U.S.C. § 455(a). Judicial recusal is required "if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge of his interest or bias in the case.â Sao Paulo State of the Federative Republic of Braz. v. Am. Tobacco Co., 535 U.S. 229, 233, 122 S.Ct. 1290, 152 L.Ed.2d 346 (2002) (alterations, emphasis and internal quotation marks omitted). Mr. Wardell's recusal contentions do not even begin to satisfy this standard. Likewise, Mr. Wardell argues that the jury was not instructed to consider the guilt of Mr. Wardell and Mr. Pursley separately and individually and the court's instructions, which purported to offer clarifying remarks to the jury in response to a question regarding the elements of the conspiracy offense, caused the jury to view Mr. Wardell and Mr. Pursley as a unit for purposes of determining guilt. At bottom, however, Mr. Wardell really takes exception to the idea that conspirators can be held responsible for overt acts of their coconspirators undertaken in furtherance of the conspiracy. However, that has long been set-
. Mr. Wardell argues that the district court abused its discretion by denying his subpoena requests for certain witnesses. We may dispose of that argument with limited discussion. We previously rejected a challenge by Mr. Wardell's codefendant, Mr. Pursley, to the district courtâs denial of his subpoena requests. Mr. Wardell represented to the district court that he sought to subpoena the same witnesses as Mr. Pursley. See R., Vol. XII, Tr. at 621 (Mr. Wardell stating, "Just to advise the court, I believe the ones I filed were mirror images of Mr. Pursleyâsâ). In rejecting Mr. Pursley's challenge, we concluded that the district court reasonably found that Mr. Pursley's motion for issuance of the subpoenas was defective under Rule 17(b), inter alia, because it failed to establish the necessity for the witnessesâ testimony for an adequate defense. Pursley II, 577 F.3d at 1229-32. Similarly, we determined that, when the district court gave Mr. Pursley a subsequent opportunity in open court to demonstrate such necessity, he failed to do so. Id. at 1231-32. Accordingly, we concluded that the district court did not abuse its discretion in denying Mr. Pursley's subpoena requests. Id. at 1230-32.
Our rulings and reasoning in Pursley II foreclose Mr. Wardellâs challenge to the district courtâs discretionary denial of his subpoena requests. Regarding their motions, Messrs. Pursley and Wardell were effectively in the same position. Mr. Wardellâs motion
. All pending motions are denied as moot.