United States v. Page

Case: 23-40621 Document: 214-1 Page: 1 Date Filed: 07/08/2026 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit FILED No. 23-40621 July 8, 2026 ____________ Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Jon Phillip Page, Jr., Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:20-CR-296-2 ______________________________ ON REHEARING Before Southwick, Oldham, and Ramirez, Circuit Judges. Leslie H. Southwick, Circuit Judge: No judge in regular active service requested the court be polled on re- hearing en banc; therefore, the petition for rehearing en banc is DENIED. See Fed. R. App. P. 40(c). The separate petition for panel rehearing is also DENIED. We withdraw our opinion, United States v. Page, 161 F.4th 875 (5th Cir. 2025), and substitute the following revised opinion. After a week-long jury trial, Jon Phillip Page, Jr., was convicted of conspiring to commit bank fraud and conspiring to commit money Case: 23-40621 Document: 214-1 Page: 2 Date Filed: 07/08/2026 No. 23-40621 laundering. His co-conspirators were his brother Thomas Page and the star witness for the Government, Clayton Wertz. The Page brothers were jointly tried and convicted. On appeal, Jon Phillip Page. Jr. (referred to here as “Phillip”) raises issues related to recusal, the handling of co-conspirators, evidentiary rulings, pre-indictment delay, rejected jury instructions, and the sufficiency of the evidence. We AFFIRM. FACTUAL AND PROCEDURAL BACKGROUND In 2010, Jon Phillip Page, Jr., and his brother Thomas Page (referred to here as “Thomas”) sought a multimillion-dollar loan from a bank to fund their partnership’s oil and gas investments. The bank would not approve the loan without collateral, prompting Thomas to offer a securities account as collateral. This securities account was worthless, but Thomas contacted Clayton Wertz, asking him to create fake statements showing that the securities account was worth millions of dollars. Over time, the Page brothers would pay Wertz tens of thousands of dollars for his services. They largely stopped paying him in mid-2013, arguably because they recognized he was in too deep to withdraw from the conspiracy. Even without compensation, Wertz continued to create fake statements. From 2010 to 2012, the brothers borrowed millions of dollars from the bank. The loans required the brothers to use loan proceeds only for business purposes. Some of the funds were ostensibly used for business purposes, but the brothers did not fully honor this limitation. Instead, they used the funds for a variety of non-business purposes, such as paying Wertz to create fake statements. Some funds went to the brothers and their relatives. Other funds went to paying interest on the loan itself. In early 2019, the bank became suspicious and asked Wertz for more information about the securities account. Sensing that discovery of the fraud was near, Wertz confessed to the bank what he and the brothers had done. 2 Case: 23-40621 Document: 214-1 Page: 3 Date Filed: 07/08/2026 No. 23-40621 He memorialized what he told the bank in an affidavit. A year and a half later, Wertz and the brothers were charged with conspiring to commit bank fraud. The three defendants ended up in front of recently-appointed District Judge Sean Jordan. One of the arguments raised on appeal is that in private practice, the future judge had represented the defrauded bank in other matters. One of those matters was resolved on appeal after Judge Jordan took the bench. See PlainsCapital Bank v. Gonzalez, 598 S.W.3d 427 (Tex. App.— Corpus Christi 2020, no pet.). 1 After his confession to the bank, Wertz assisted the Government in preparing its case. Even so, the brothers did not take the Government’s initial offer, which would have required them both to plead guilty. In March 2022, Thomas entered an open guilty plea, filing his own factual basis in an apparent attempt to shield his brother from criminal liability. Six days later, the Government filed a superseding indictment, adding a charge of conspiracy to commit money laundering against all three defendants. Phillip moved to dismiss the indictment, arguing that the Government added the charge solely to prevent him from calling his brother as a witness. That motion was denied. Over the next several months, Thomas and Wertz pled guilty to the conspiracy to commit bank fraud charge. Thomas did not plead guilty to the conspiracy to commit money laundering charge. That same charge was _____________________ 1 By the time Gonzalez was decided in March 2020, Judge Jordan no longer represented the bank. Gonzalez, 598 S.W.3d at 428 (lawyer credits). He had been nominated and confirmed to his judgeship in 2019. His last clear representation of the bank was as lead appellate counsel on the appellant’s brief filed on August 17, 2018, though he is also listed in the appellee’s brief filed by opposing counsel on September 14, 2018. Appellant’s Brief at i, Gonzalez, 598 S.W.3d 427 (No. 13-18-00272-CV); Appellee’s Brief at ii, Gonzalez, 598 S.W.3d 427 (No. 13-18-00272-CV). Wertz and the Page brothers were indicted on October 15, 2020, and the trial began on January 30, 2023. 3 Case: 23-40621 Document: 214-1 Page: 4 Date Filed: 07/08/2026 No. 23-40621 dismissed against Wertz under the terms of his plea agreement. Phillip moved to sever, citing complications presented by his brother’s guilty plea to the conspiracy to commit bank fraud charge. That motion was also denied. The case went to trial in early 2023, around a month after the bank produced some 12,000 pages of bank records. After a one-week jury trial, the brothers were convicted on all counts. We will not summarize the lengthy trial record here, except to say that Wertz was the Government’s star witness. Phillip attempted to stake out a defense that he had no role in the conspiracy but had instead been tricked by Thomas and Wertz. The jurors’ verdict revealed that they were not convinced. On October 18, 2023, Phillip was sentenced to 63 months in prison on each count, to run concurrently, along with several years of supervised release thereafter. Judgment was entered the next day. Phillip timely appealed. DISCUSSION On appeal, Phillip raises issues related to (1) recusal, (2) the handling of co-conspirators, (3) evidentiary rulings, (4) pre-indictment delay, (5) rejected jury instructions, and (6) the sufficiency of the evidence. He also argues (7) that even if none of those issues are reversible error, the cumulative error doctrine justifies a new trial. We will address those issues in that order. We begin with a few points about our standard of review. Most of the alleged errors are reviewed only for an abuse of discretion. 2 Only a few are _____________________ 2 United States v. Johnson, 943 F.3d 214, 220 (5th Cir. 2019) (evidentiary rulings); United States v. Tarango, 396 F.3d 666, 671 (5th Cir. 2005) (new trial); United States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012) (severance); United States v. Gray, 105 F.3d 956, 968 (5th Cir. 1997) (recusal); United States v. Shah, 95 F.4th 328, 376 (5th Cir. 2024) (jury instructions); United States v. Peterson, 244 F.3d 385, 393 (5th Cir. 2001) (limiting 4 Case: 23-40621 Document: 214-1 Page: 5 Date Filed: 07/08/2026 No. 23-40621 reviewed de novo. 3 The specifics of abuse of discretion review vary based on the underlying issue, but a court generally “abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)). Thus, our review of underlying legal conclusions is de novo, but our review of underlying findings of fact is for clear error. Ayestas v. Davis, 933 F.3d 384, 388 (5th Cir. 2019). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States v. Harris, 740 F.3d 956, 967 (5th Cir. 2014) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). Any unpreserved issues are reviewed for plain error. Fed. R. Crim. P. 52(b). Reversal for plain error requires (1) an error that (2) is “clear or obvious” and (3) “affected the appellant’s substantial rights” (i.e., it “affected the outcome of the district court proceedings”); if the first three steps are satisfied, (4) the court of appeals may exercise its discretion to correct the error, which is appropriate “only if the error seriously affect[s] _____________________ instructions); United States v. Powell, 732 F.3d 361, 376 (5th Cir. 2013) (evidentiary decisions surrounding a Bruton issue). 3 United States v. Hope, 487 F.3d 224, 227 (5th Cir. 2007) (sufficiency of the evidence); United States v. Scully, 951 F.3d 656, 668 (5th Cir. 2020) (pre-indictment delay). Regardless, review of these issues is still deferential. See United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (describing the sufficiency of the evidence standard); Scully, 951 F.3d at 668 (factual findings in evaluating pre-indictment delay are reviewed for clear error). 5 Case: 23-40621 Document: 214-1 Page: 6 Date Filed: 07/08/2026 No. 23-40621 the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quotation marks omitted) (quoting United States v. Olano, 507 U.S. 725, 734, 736 (1993)). A final note: we disregard any nonprejudicial errors. Fed. R. Crim. P. 52(a). The standard for finding that an error was prejudicial varies based on the nature of the error. A constitutional error is prejudicial unless the Government can show that it was harmless beyond a reasonable doubt. United States v. Alexius, 76 F.3d 642, 646 (5th Cir. 1996). By contrast, any “nonconstitutional trial error is harmless unless it had substantial and injurious effect or influence in determining the jury’s verdict.” United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998) (quotation marks omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). I. Failure to Recuse Phillip argues that the district judge was required to recuse himself because his prior relationship with the victim bank — having represented it in unrelated civil appellate proceedings a few years prior — made it so that “his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). He concedes that he did not preserve this issue and argues we should review for plain error. The Government contends that Phillip’s failure to make a timely request for recusal entirely forecloses relief absent “good cause” or “exceptional circumstances” not present here. See United States v. Sanford, 157 F.3d 987, 988–89 (5th Cir. 1998). Phillip cannot show even plain error, as we explain. District judges must recuse themselves when their “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The relevant statute also lists a set of specific circumstances in which district judges must recuse themselves. Id. § 455(b). We review a district judge’s failure to recuse for 6 Case: 23-40621 Document: 214-1 Page: 7 Date Filed: 07/08/2026 No. 23-40621 an abuse of discretion. United States v. Gray, 105 F.3d 956, 968 (5th Cir. 1997). If a district judge should have recused, reopening proceedings is still not strictly required; in deciding upon a remedy, we must consider several factors, including “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988). We do not reach this second step of the analysis because Phillip fails to show the district judge was clearly or obviously required to recuse himself under Section 455(a). He argues that recusal was required because the district judge represented the victim bank in unrelated civil appellate litigation two years before he was indicted. He does not explain how this unrelated prior representation clearly or obviously required recusal, nor does he cite any authority in his opening brief to substantiate this argument. The Government, on the other hand, cites meaningful authority demonstrating that recusal has not been required under similar circumstances.4 We add that Section 455(b)(2) appears designed to deal with this kind of situation but does not require recusal here because the prior representation was unrelated to this criminal case. That, too, counsels against finding that the district judge was clearly or obviously required to recuse himself under Section 455(a). See Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir. _____________________ 4 See Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir. 1982) (unrelated prior representation of defendant did not require recusal); National Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953, 958 & n.9 (2d Cir. 1978) (same); Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175, 1180 (9th Cir. 2005) (professional relationship with victims did not require recusal); United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (discussing a case in which unrelated prior representation of victim did not require recusal); United States v. Saavedra, No. 22-2149, 2024 WL 855199, at *3 (10th Cir. Feb. 29, 2024) (collecting cases holding that even an active working relationship with a victim in a criminal case does not require recusal). 7 Case: 23-40621 Document: 214-1 Page: 8 Date Filed: 07/08/2026 No. 23-40621 1982) (inapplicability of Section 455(b)(2) was relevant in finding that Section 455(a) did not require recusal). The district court did not plainly err. II. Handling of Co-conspirators Phillip raises three categories of issues related to the handling of his co-conspirators, Thomas and Wertz: (1) a potential Confrontation Clause violation based on Thomas’s partial guilty plea at rearraignment at the start of trial; (2) problems related to the Government’s use of Thomas’s and Wertz’s guilty pleas without contemporaneous limiting instructions; and (3) a challenge to the denial of Phillip’s motion to sever. We will address those issues in that order. A. Confrontation Clause Phillip argues that his Confrontation Clause rights were violated when Thomas pled guilty to the conspiracy to commit bank fraud charge at the start of trial. A brief explanation is in order. The indictment was read aloud during voir dire, and the jury was allowed to take it into the jury room for deliberations. 5 That indictment charged Thomas, Phillip, and Wertz with conspiring together to commit bank fraud. Phillip contends that when Thomas pled guilty to that charge at the start of trial, the jury would have interpreted his plea as confessing to facts alleged in the indictment, including _____________________ 5 Phillip challenges these uses of the indictment based on a supposedly “inflammatory” paragraph therein, but he fails to cite any authority in his opening brief to explain how the district court erred. Phillip forfeited his argument by failing to brief it adequately on appeal. See United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010). In any event, the complained-of paragraph spans less than a page and straightforwardly describes the manner and means of the conspiracy. We fail to see how it was inflammatory and denied Phillip a fair trial, especially when the jury was repeatedly instructed that the indictment was not evidence. See United States v. Tucker, 526 F.2d 279, 283 (5th Cir. 1976) (finding no error when a properly instructed jury was furnished with a copy of the indictment before trial). 8 Case: 23-40621 Document: 214-1 Page: 9 Date Filed: 07/08/2026 No. 23-40621 that Phillip participated in the conspiracy. Because Phillip could not effectively call Thomas to testify — Thomas was on trial for the conspiracy to commit money laundering charge and could have invoked his Fifth Amendment right against self-incrimination — Phillip argues that his constitutional rights under the Confrontation Clause were violated, citing Bruton v. United States, 391 U.S. 123 (1968). “While we review constitutional challenges de novo, the trial court’s evidentiary decisions on a Bruton issue are reviewed for abuse of discretion.” United States v. Powell, 732 F.3d 361, 376 (5th Cir. 2013) (quoting United States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007)). At the threshold, we are inclined to agree with the Government that because neither Thomas’s guilty plea nor the indictment is evidence, they are not testimonial within the meaning of the Confrontation Clause. 6 See Crawford v. Washington, 541 U.S. 36, 50 (2004). The jury was repeatedly instructed not to consider the indictment as evidence. We leave that question open for another day because Phillip’s Confrontation Clause argument fails for a different reason: Thomas’s guilty plea did not directly implicate Phillip in the conspiracy. Instead, the jury had to make an inference using other available information. As both the Supreme Court and this court have held, with one narrow exception not applicable here, there can be no Bruton violation when the jury must make an inference _____________________ 6 Although it is true that in Douglas v. Alabama, 380 U.S. 415, 419–20 (1965), a prosecutor’s questions — which are not evidence, United States v. Pando Franco, 503 F.3d 389, 395 (5th Cir. 2007) — were the basis for a Confrontation Clause violation, that case is distinguishable. In Douglas, a witness invoked his Fifth Amendment rights and in response, the prosecutor read his confession line by line in question form. Douglas, 380 U.S. at 416– 17. The prosecutor’s questions were not evidence, but the underlying confession was plainly testimonial. Neither the indictment nor a bare plea is clearly testimonial in the same way. 9 Case: 23-40621 Document: 214-1 Page: 10 Date Filed: 07/08/2026 No. 23-40621 of this kind. See Richardson v. Marsh, 481 U.S. 200, 208–11 (1987); Samia v. United States, 599 U.S. 635, 652–55 (2023); United States v. Nanda, 867 F.3d 522, 527–28 (5th Cir. 2017). Because Thomas’s guilty plea did not directly implicate Phillip, there was no Bruton violation. B. Guilty Plea Paperwork and Limiting Instructions Next, Phillip argues that the Government improperly used (1) Thomas’s and Wertz’s guilty pleas and (2) Wertz’s factual basis and plea agreement. We will address those issues in that order. 1. Guilty Pleas Phillip argues that it was error for Thomas’s and Wertz’s guilty pleas to be introduced at his trial as substantive evidence, especially without a contemporaneous limiting instruction from the district court. The Government counters that Phillip cannot show plain error because the district court provided limiting instructions on the use of the guilty pleas, if not contemporaneous ones, and it was Thomas’s attorney, not the Government, who was the “primary source of alleged prejudice.” We conclude that Phillip did not preserve this issue in the district court. 7 Accordingly, we review for plain error. _____________________ 7 Phillip objected both pre-trial and at trial to the introduction of Thomas’s guilty plea on the grounds that the plea was hearsay, that the plea’s introduction would be a Bruton violation, and that the plea would be “inflammatory.” In addition, Phillip filed motions in limine objecting to the introduction of co-conspirators’ hearsay testimony without a James hearing and Wertz’s plea as bolstering. Phillip requested severance on the basis of Federal Rule of Criminal Procedure 14(a), Bruton, and the Confrontation Clause. All such objections were denied by the district court. “Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Fed. R. Evid. 103(b). Nonetheless, an objection must “state[] the specific ground” for excluding evidence, “unless it was apparent from the context.” Fed. R. Evid. 103(a)(1)(B). Phillip never squarely raised the issue here: the improper introduction of the guilty pleas as 10 Case: 23-40621 Document: 214-1 Page: 11 Date Filed: 07/08/2026 No. 23-40621 One person’s guilty plea is not admissible evidence against someone else allegedly involved in the commitment of the same crime to prove any of the factual elements of that crime: “[A] defendant is entitled to have the questions of his guilt determined upon the evidence against him, not on whether a government witness or a codefendant has pled guilty to the same charge.” United States v. Fleetwood, 528 F.2d 528, 532 (5th Cir. 1976) (quoting Babb v. United States, 218 F.2d 538, 542 (5th Cir. 1955)). There are limited permissible uses of a guilty plea, and courts must be vigilant in allowing their introduction. Our analysis of error in the use of a co-conspirator’s guilty plea at trial is guided by four factors: (1) the presence or absence of a limiting instruction; (2) whether there was a proper evidentiary purpose for introduction of the guilty plea; (3) whether the plea was improperly emphasized or used as substantive evidence of guilt; and (4) whether the introduction of the plea was invited by defense counsel. United States v. Murray, 988 F.2d 518, 523 (5th Cir. 1993) (numbering and restating the factors listed in, and citing to, United States v. Black, 685 F.2d. _____________________ substantive evidence. The district court asked Phillip’s attorney directly at trial, “Is there authority for the proposition that simply the fact that Thomas has pleaded guilty, been adjudged guilty, as to that count, and it involves a conspiracy with Phillip Page, that alone in and of itself, and the jury knowing, just knowing that he has pled guilty, is sufficient to say we can’t go forward without a severance?” Counsel responded, “Not something on point. There’s no golden unicorn. If there was, I would have it for you.” Phillip also did not object at trial to the Government’s closing statement referencing the guilty pleas. Phillip’s failure to articulate until briefing in this court an objection on the specific grounds that the pleas were improperly used as substantive evidence leads us to review for plain error. See United States v. Huntsberry, 956 F.3d 270, 282 (5th Cir. 2020). 11 Case: 23-40621 Document: 214-1 Page: 12 Date Filed: 07/08/2026 No. 23-40621 132, 135 (5th Cir. 1982)). As a result of their source, I will label these the Black factors. Phillip contends that under the Black factors the district court committed plain error by allowing the improper use of Thomas and Wertz’s guilty pleas. The first factor is the presence or absence of a limiting instruction. Contemporaneous limiting instructions on the use of guilty pleas are preferred, but a later limiting instruction can suffice. United States v. Devers, 4 F.3d 990, 1993 WL 360813, at *2 (5th Cir. 1993) (unpublished but precedential under 5th Cir. R. 47.5.3) (citing United States v. Borchardt, 698 F.2d 697, 701 (5th Cir. 1983)). Though they were not contemporaneous, limiting instructions were given here. The district court instructed the jury in the closing charge that “[t]he fact that an accomplice has entered a plea of guilty to the offense charged is not evidence of the guilt of any other person.” Accordingly, this factor favors the Government. The second factor is whether there was a proper evidentiary purpose for the introduction of the plea. The Government may introduce a plea “to thwart a defense strategy” or to “negate expected impeachment efforts.” United States v. Moparty, 11 F.4th 280, 293 (5th Cir. 2021). Here, it was the district court that first told the jury of Thomas’s guilty plea, at Thomas’s behest, during the opening of trial. Thomas, of course, had a proper evidentiary purpose for requesting introduction: to build his defense, namely, that he had accepted responsibility for the crime he had committed and would not have contested the second money laundering charge unless he truly was innocent. While it was Thomas who caused jurors to be informed of his guilty plea, Phillip argues there was error in the Government’s use of that plea. The Government may not step outside its “permissible bounds” by using a guilty plea, even one properly introduced, for an improper purpose in closing. See 12 Case: 23-40621 Document: 214-1 Page: 13 Date Filed: 07/08/2026 No. 23-40621 United States v. Miranda, 593 F.2d 590, 595 (5th Cir. 1979). There was one erroneous use by the Government — the prosecutor in closing argument exhorted jurors not to take his word for the existence of a bank fraud conspiracy, instead urging reliance on the fact that “Thomas Page and Clayton Wertz have already pleaded guilty to it,” adding, “[a]ll we had to show you was that Phillip Page was part of that conspiracy.” That argument erroneously told jurors that the guilty plea substituted for evidence of a conspiracy. This was a clarion-clear use of the plea as substantive evidence, i.e., as evidence that a conspiracy existed. It is true the government argued it still needed to prove Phillip was part of the conspiracy, but it misled jurors by insisting it did not need to prove there was a conspiracy. Yes, the Government did. The impact on the case, however, was all but nonexistent, as Phillip conceded there was a conspiracy. Technically, this factor could be seen as favoring Phillip. We give it no weight, though, because the improper use of the plea was to prove a factual issue that was not contested. The third factor is whether the plea was improperly emphasized or used as substantive evidence of guilt. The Government may not impermissibly “linger on the fact that the witnesses had pled guilty.” United States v. Jordan, 945 F.3d 245, 258 (5th Cir. 2019). Here, the prosecuting attorney only directly mentioned Thomas’s plea once in his closing statement. We are guided by the Supreme Court’s instructions to be wary of faulting the Government for “[i]solated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence,” when “improvisation frequently results in syntax left imperfect.” Donnelly v. DeChristoforo, 416 U.S. 637, 646–47 (1974). We have on-point precedent to apply, too; in United States v. Roland, a panel of this court found this factor weighed in favor of the Government in similar circumstances. Roland, 130 F.4th at 487. This factor favors the Government. 13 Case: 23-40621 Document: 214-1 Page: 14 Date Filed: 07/08/2026 No. 23-40621 The fourth factor is whether the introduction of the plea was invited by defense counsel. “[A] defendant will not be heard to complain of [a guilty plea’s] admission when he instigates such admission, or attempts to exploit the evidence by frequent, pointed, and direct references to the coconspirators’ guilty plea.” United States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990). This court’s precedents emphasize that a defendant’s willing choice to “employ” a co-defendant’s guilty plea will be at the expense of any later complaint about its admission. E.g., United States v. Handly, 591 F.2d 1125, 1128 (5th Cir. 1979). The Government argues that it was a defense counsel, albeit Thomas’s attorney, who insisted jurors learn Thomas had pled guilty to the bank fraud count and repeatedly referred to the plea in opening and closing. We discovered only one precedent that evaluates the Black factors in the context of one defendant’s introducing the guilty pleas at the expense of another defendant. In the precedential though unpublished panel opinion we have discussed already, Devers, a co-defendant of the appellant had, while cross-examining the prosecution’s first witness, brought out testimony regarding the guilty pleas of a number of testifying and non-testifying co- conspirators. 4 F.3d 990, 1993 WL 360813, at *1. The district court had instructed the jury that an accomplice’s guilty plea was not evidence of the guilt of any other person. Id. at *2. Nonetheless, the appellant urged the court to apply the same four factors we have been discussing here to the conduct of counsel for a co-defendant. 8 Id. _____________________ 8 The Devers court did not cite Black for the factors, instead relying on United States v. Leach, 918 F.2d 464, 467 (5th Cir.1990). Devers, 4 F.3d 990, 1993 WL 360813 at *2. Leach, though, cited Black as its source. Leach, 918 F.2d at 467 (citing Black, 685 F.2d at 132). 14 Case: 23-40621 Document: 214-1 Page: 15 Date Filed: 07/08/2026 No. 23-40621 The appellant’s argument was that the harm to a defendant does not turn on which party, the Government or a co-defendant, introduced another person’s guilty plea. See id. Because there had been no objection to the introduction, the Devers court required the defendant-appellant to show plain error and concluded he failed to do so. Id. In finding no plain error, the court explained that the fact that “the prejudicial information was not elicited by the prosecution but rather by Devers’ co-defendant” was a “significant distinction, at least in the plain error analysis.” Id. In addition, the court relied on three details about the trial: 1) there was “no suggestion of any antagonism or conflicting defenses between the two defendants”; 2) the reference to the guilty pleas left open the inference that several conspirators were acquitted; and 3) the Government did not use the pleas to “create an inference of the [appellant’s] guilt.” Id. Here, it may be that all three additional considerations identified in Devers favor Page. More important to this analysis, though, is that the final Black factor is almost a waiver issue — did the party now complaining about error actually cause the introduction of the guilty plea? When that is so, the defendant “will not be heard to complain.” Leach, 918 F.2d at 467. Unless that is the case, the fourth factor really has no relevance, and our decision is controlled by the first three factors alone. Because Phillip did not employ, reference, or exploit Thomas’s guilty plea, and instead sought to keep Thomas’s plea out at every step, the fourth factor is inapplicable. In summary, no factor favors reversal. There were limiting instructions. The one errant effort to use the plea as substantive evidence was on an uncontested fact. The Government did not improperly emphasize the guilty plea. The Black factors have been raised and considered, and they do not favor Phillip. 15 Case: 23-40621 Document: 214-1 Page: 16 Date Filed: 07/08/2026 No. 23-40621 Turning to Wertz’s guilty plea, at least three of the four factors favor the Government: (1) there was a limiting instruction even if not a contemporaneous one; (2) there was a proper evidentiary purpose for the initial introduction, i.e., undercutting an inevitable line of impeachment; and (3) the Government used his guilty plea to buttress his testimony, not as substantive evidence of guilt. See Borchardt, 698 F.2d at 701 (finding these factors favored the Government on similar facts). The fourth factor alone might favor Phillip because the Government elicited Wertz’s guilty plea. Even so, it is of limited weight because Phillip was inevitably going to refer to Wertz’s guilty plea to paint him as an unreliable witness — and indeed, Phillip did exactly that. See United States v. Delgado, 401 F.3d 290, 300 (5th Cir. 2005) (fourth factor favored the Government when the defendant used guilty pleas elicited by the Government to impeach the witnesses’ credibility). There was no plain error in the use of the guilty pleas. 2. Wertz’s Plea Agreement and Factual Basis Phillip challenges the admission of Wertz’s plea agreement and factual basis as impermissible bolstering. We find no bolstering in Wertz’s plea agreement. On the contrary, Wertz’s plea agreement, particularly the provision about the possibility of a substantial assistance motion, provided fertile grounds for impeachment. Phillip did not miss his opportunity to use Wertz’s plea agreement to paint him as an unreliable witness. With respect to Wertz’s factual basis, Phillip fails to explain how the factual basis was not merely cumulative of Wertz’s live testimony (and therefore harmless). In fact, Phillip seems to concede that the factual basis was cumulative. Wertz’s factual basis was limited and general, taking up just over a page of space and discussed on only three pages of the transcript of his direct examination. Wertz’s direct examination spans roughly 80 pages of 16 Case: 23-40621 Document: 214-1 Page: 17 Date Filed: 07/08/2026 No. 23-40621 the trial transcript. It was not error to admit Wertz’s plea agreement and factual basis. C. Denial of Severance Phillip also argues the district court erred in denying his motion to sever his case from his brother’s. “This court reviews a denial of a motion for severance for abuse of discretion.” United States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012). Phillip’s severance arguments largely echo the arguments just discussed. To the extent that they overlap, they fail for the same reasons. Phillip’s only new argument is that there was prejudicial spillover evidence that was admissible only against Thomas. We will discuss some of this evidence later, but for now it suffices to say that Phillip fails to explain how any prejudicial evidence was admissible against Thomas but not against him. At most, he demonstrates that a single WhatsApp message would be inadmissible against him, but as we will explain later, any prejudice from that message was minimal. This court has already held that joint trials are preferred, “particularly in conspiracy cases,” and review of the denial of a motion to sever is highly deferential. United States v. Daniel, 933 F.3d 370, 380 (5th Cir. 2019) (quoting United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995)). Absent “a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence,” severance is not warranted. Zafiro v. United States, 506 U.S. 534, 539 (1993). Curative instructions are the preferred remedy for problems caused by joint trials. Id. Phillip has not carried his heavy burden of showing that severance was required here. III. Other Evidentiary Rulings Phillip argues that the district court erred in admitting five groups of evidence: (1) Wertz’s 2019 affidavit; (2) a WhatsApp message from Thomas 17 Case: 23-40621 Document: 214-1 Page: 18 Date Filed: 07/08/2026 No. 23-40621 to Wertz; (3) Wertz’s testimony that the Page brothers told Wertz “This is what you get for dancing with the devil”; (4) photographs of the brothers’ homes; and (5) summary charts produced by the Government documenting the brothers’ financial transactions. “We review a district court’s evidentiary rulings for abuse of discretion subject to harmless error analysis.” United States v. Johnson, 943 F.3d 214, 220 (5th Cir. 2019). A. Wertz’s 2019 Affidavit Phillip argues that Wertz’s 2019 affidavit detailing his involvement in the conspiracy was inadmissible as a prior consistent statement under Federal Rule of Evidence 801(d)(1)(B) because it was made after his motive to lie arose, i.e., he was already in legal jeopardy after having been caught by the bank. He also argues that the affidavit’s admission violated Rule 403 because of the possibility that it could be taken for its truth, thus directly implicating him rather than merely rehabilitating Wertz’s credibility. The second argument collapses into the first: evidence that is admissible under Rule 801(d)(1)(B) is not hearsay and can therefore be taken for its truth. Fed. R. Evid. 801(d)(1)(B); Tome v. United States, 513 U.S. 150, 157 (1995). To be admissible under Rule 801(d)(1)(B), a prior consistent statement “must have been made before the alleged influence, or motive to fabricate, arose.” Tome, 513 U.S. at 157. “A prior consistent statement need not rebut all motives to fabricate, but only the specific motive alleged at trial.” United States v. Wilson,