FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS October 14, 2010
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 09-2077
                                              (D.C. No. 1:08-CR-00052-MCA-1)
 v.
                                                           (D.N.M.)
 ROBERT LEE NICK,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HOLMES, Circuit Judges.


      Defendant-Appellant Robert Lee Nick was convicted after a jury trial of

possession with intent to distribute more than 100 kilograms of marijuana. After

the government’s closing argument, Mr. Nick sought to reopen the evidence due

to the discovery of a second key to the padlock that secured the trailer in which

the marijuana was discovered. However, the district court suggested that the

matter could be better addressed in the post-trial motion context and did not allow

Mr. Nick to present evidence of the discovery of the second key. After the jury


      *
              This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
rendered its guilty verdict, Mr. Nick filed a motion for new trial relating to the

discovery of the second key, which the district court denied. He then filed a

motion for reconsideration, which the district court also denied.

      Mr. Nick now argues on appeal that the district court committed two errors:

(1) the district court abused its discretion in denying his motion to reopen when

he wanted to present the evidence concerning the second key, and (2) the district

court abused its discretion in denying his motion for a new trial due to the

discovery of the second key. We exercise jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742 and AFFIRM.

                                  BACKGROUND

      A grand jury returned a two-count indictment against Mr. Nick and a co-

defendant—his brother, Percy Nick. 1 The indictment charged them with

conspiring to possess with intent to distribute more than 100 kilograms of

marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B), and

possessing with intent to distribute more than 100 kilograms of marijuana, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

      At trial, the government presented evidence that Mr. Nick—accompanied

by his nephew, Christopher Patrick, and his brother, Percy—was hauling a load of

celery from California to Michigan when a safety inspection at the port of entry in

      1
             Mr. Nick filed an unopposed motion to sever his trial from that of his
brother due to Percy Nick’s status as a fugitive, and the district court granted the
motion.

                                         -2-
Gallup, New Mexico, revealed approximately 550 pounds of marijuana hidden in

boxes at the front of Mr. Nick’s trailer.

      More specifically, the evidence revealed the following: A transportation

inspector for the New Mexico Department of Safety testified that discrepancies in

the logbook, and between the logbook and the bill of lading, caused her to refer

the matter to a police officer who served as a commercial vehicle inspector. This

police officer also examined the logbook, bill of lading, and driver’s license

provided by Mr. Nick—all of which were in the name of a “Ricky Bunn” 2—and

upon discovering additional discrepancies, decided to perform a level-2

inspection, which entails walking around the truck and trailer; examining the

equipment, logbook, and bill of lading; and checking for cargo and load

securement. When the officer asked Mr. Nick to open the trailer for cargo

inspection, Mr. Nick removed the key from the ignition of the truck and opened

the padlock that secured the trailer door with another key on that key ring.

During this inspection, the officer observed that the trailer contained a load of

celery, but he also noted that the load’s boxes had crush marks which he believed

indicated that someone had crawled on top of the load. The officer also observed

two “sliders,” which he testified are frequently used by drug couriers to slide

contraband to a location in the trailer behind the legitimate load. As a result of


      2
            The photo on the driver’s license was of Mr. Nick. The officer
discovered a week later that the driver was actually Mr. Nick, not Mr. Bunn.

                                            -3-
these observations, the officer entered the trailer, whereupon he discovered a

series of brown boxes in front of the load of celery which contained black trash

bags filled with marijuana. At this point, the officer arrested Mr. Nick and his

two passengers.

      The defense presented two witnesses: Mr. Patrick, Mr. Nick’s nephew and

one of the passengers on the day of Mr. Nick’s arrest, and Yvette Santifer, Mr.

Nick’s business partner and estranged wife. Mr. Patrick testified that he was

learning how to drive a large rig from his uncle, and that he had traveled with Mr.

Nick from Mississippi to Waco, Texas, to deliver a load of juice and to pick up a

load of chicken, which they then delivered to a place near Los Angeles. He

explained that one of the company’s other trucks had broken down, and he and

Mr. Nick tried to help repair it. Then, due to the mechanical problems of the

other truck and unavailability of other drivers, dispatch—that is, Ms.

Santifer—told Mr. Nick to pick up the load of celery.

      Mr. Patrick testified that he was with Mr. Nick when the celery was loaded,

and he observed Mr. Nick seal the trailer with the padlock. The two men then

drove the truck to Compton, California, where they left it for approximately

nineteen hours while dispatch looked for another driver. Eventually, Mr. Nick

had to deliver the celery load himself due to its perishable nature. Mr. Patrick

testified that all of the drivers had keys to all the trucks “so . . . every time they

feel they needed a load in a specific truck, they could jump in one and go.” R.,

                                          -4-
Vol. III, at 342. However, he did not know whether the other drivers, or anyone

else, had keys to the padlock on this particular truck.

      Ms. Santifer testified that she was the dispatcher for and part-owner of

Nick’s Trucking with Mr. Nick, from whom she was separated. Nick’s Trucking

used four drivers who were each independent contractors—one of whom was Mr.

Bunn. While Mr. Nick was part-owner of Nick’s Trucking, he was not an

authorized driver. Despite this fact, she explained that when emergency

situations came up, Mr. Nick would nonetheless drive loads using a fake trucker’s

license in Mr. Bunn’s name.

      A few days before Mr. Nick’s arrest, Ms. Santifer arranged for Nick’s

Trucking to haul a load of celery from California to Michigan. However, due to

mechanical difficulties with one of the company’s trucks and her inability to find

alternate drivers, she told Mr. Nick he would have to pick up the load of celery.

She explained that after he picked up the load, she kept looking for another

driver, but eventually pressed Mr. Nick to deliver it himself.

      Ms. Santifer testified that she believed there were multiple keys to the

padlock that secured the trailer Mr. Nick was hauling when he was arrested. She

explained that she tried to ensure each driver had keys that would operate the

locks on each other’s vehicles so they could swap equipment more easily when

necessary. Acknowledging that both the government and Mr. Nick had asked her

before trial to produce any duplicate keys to the padlock, she stated that she did

                                         -5-
not know which lock was the one for Mr. Nick’s trailer, or what the key that fit

that lock looked like. She further explained that her son had located more trailer

keys that might fit the padlock and he was sending them to her via overnight mail.

      After Ms. Santifer completed her testimony, the jury was excused for the

day because Mr. Nick wanted time to decide if he would testify in his defense.

The next morning, Mr. Nick declined to testify and the defense rested. The

government then made its closing argument, emphasizing that there was only one

key to the padlock securing the trailer and that Mr. Nick was the individual who

had it. 3 During the recess between the parties’ closing arguments, Mr. Nick’s

attorney informed the court that his office had received a FedEx package that

morning and the package contained four keys, one of which opened the padlock.

At this point, Mr. Nick’s counsel requested that the court allow him to

demonstrate during his closing that this new key fit the padlock and moved to


      3
            The government mentioned that Mr. Nick had the only key to the
padlock on five different occasions during its closing argument. For example, the
government explained that Mr. Nick

             walked to the back of the trailer after taking the keys out of the
             ignition with the only—the only key to this lock . . . the only key
             to this lock in this trial. That’s it. The evidence has shown that
             for the purposes of this trial, the only key that exists for this lock
             is the key that the defendant possessed.

R., Vol. III, at 409. The government also explained: “That’s what this case is
about . . . [,] this stuff right here, the bulk marijuana, 550 pounds of it that was
stuffed in the front of the defendant’s trailer to which only he had the key . . . .”

                                          -6-
reopen the evidence. The government objected to this possible demonstration and

also objected to Mr. Nick’s motion to reopen. The district court did not let Mr.

Nick present this evidence and reminded the defense that it would entertain a

motion for a new trial based on newly discovered evidence if the jury convicted

Mr. Nick. Mr. Nick’s counsel explicitly agreed to this course of action, stating:

“perhaps the best way to handle [the situation was] to let the jury go ahead and

render its verdict and determine from that what post-trial motions may be in

order.” R., Vol. III, at 434.

      The trial continued—the defense gave its closing, the government its

rebuttal, and the jury began to deliberate. After responding to a note from the

jury, the district court explained that while it had the parties together, it wanted to

“make a record as to the reasons why [it] denied the defendant’s motion to reopen

the evidence in this case” and proceeded to give a more detailed explanation for

its denial. R., Supp. Vol. I, at 43.

      Ultimately, the jury found Mr. Nick guilty on the possession count, but

acquitted him on the conspiracy count. Within seven days of the jury’s verdict,

Mr. Nick moved for a new trial, citing both the “the interest of justice” standard

and the newly discovered evidence standard, based upon the discovery of the

second key. The district court denied this motion, and denied Mr. Nick’s motion

for reconsideration, which did not argue that the district court had applied the




                                         -7-
wrong legal standard in evaluating his motion for a new trial. Subsequently, Mr.

Nick was sentenced by the district court. He then filed a timely notice of appeal.

                                   DISCUSSION

      Mr. Nick raises two challenges to his conviction: (1) the district court erred

in denying his motion to reopen, and (2) the district court erred in denying his

motion for new trial and his reconsideration motion on this issue. We address

each challenge in turn.

      I.     Motion to Reopen

      We generally review the denial of a motion to reopen the evidence for an

abuse of discretion. Morsey v. Chevron USA, Inc., 

, 1477 (10th Cir.

1996); see also United States v. Montgomery, 

, 757 (10th Cir. 1980)

(“Certainly the trial court has discretion to determine whether to reopen a case,

and ordinarily a decision to reopen will not be reversed on review without a clear

showing of abuse of discretion.”). A district court abuses its discretion if its

decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.” United

States v. Doe, 

, 1172 (10th Cir. 2009) (quoting United States v.

Sells, 

, 1237 (10th Cir. 2008), cert. denied, 

(2009))

(internal quotation marks omitted), cert. denied, 

(2010). “Under

the abuse of discretion standard, a trial court’s decision will not be disturbed

unless the appellate court has a definite and firm conviction that the lower court

made a clear error of judgment or exceeded the bounds of permissible choice in

                                         -8-
the circumstances.” Fed. Deposit Ins. Corp. v. Rocket Oil Co., 

,

1160 n.1 (10th Cir. 1989) (per curiam). Elaborating on that standard, we have

stated: “A district court abuses its discretion where it commits a legal error or

relies on clearly erroneous factual findings, or where there is no rational basis in

the evidence for its ruling.” Davis v. Mineta, 

, 1111 (10th Cir.

2002) (citation omitted).

             A.     Timing of Denial

      On appeal, Mr. Nick argues that the district court’s denial of the motion to

reopen the evidence “should not be deferentially reviewed because the district

court declined to exercise its discretion when the motion was made and denied it

much later—after the parties had concluded their closing arguments and the jury

had deliberated for several hours.” Aplt. Opening Br. at 22. He stresses that the

district court erred by delaying its decision on whether to grant his motion to

reopen the evidence. He contends that this delay—which permitted the closing

arguments to conclude and the jury to commence deliberations—effectively

dictated the district court’s ultimate denial of his motion to reopen. In response,

the government argues that Mr. Nick has waived the issue by acquiescing to the

district court’s suggestion that the issue would be better addressed, if necessary,

in a motion for new trial.




                                         -9-
      Even if Mr. Nick is correct that the district court delayed its decision on the

motion to reopen, 4 we agree with the government that Mr. Nick has waived any

argument concerning any potential prejudice that the delayed timing of the district

court’s ruling may have caused him. “‘Waiver is the intentional relinquishment

or abandonment of a known right,’ whereas ‘forfeiture is the failure to make the


      4
             The government contends that the district court “did not explicitly
rule on the motion at all.” Aplee. Br. at 26 (emphasis added). However, we note
that the record at least strongly suggests that the district court believed it had
denied Mr. Nick’s motion in the first instance.

      Reviewing the record, it seems apparent that the district court believed it
had denied the motion when Mr. Nick first raised it. The district court discussed
the motion to reopen twice on the record. First, the district court stated:

             Given the precise circumstance that is before us here, what I
             suggest, Counsel, would be most appropriate is that we let the
             jury continue to hear the closing arguments. . . . And the
             Court—if there is a conviction on one or more counts, then the
             Court would certainly entertain any further motions post-trial, for
             example, a motion for new trial based on newly discovered
             evidence.

R., Vol. III, at 433. By expressly suggesting a better avenue—viz., a motion for
new trial—arguably, the district court tacitly and effectively denied Mr. Nick’s
motion to reopen. This view is supported by the second time the district court
addressed the motion. After discussing how best to handle a question from the
jury, the district court also made a record “as to the reasons why [it] denied the
defendant’s motion to reopen the evidence in this case, that motion having been
made after the government completed its first part of closing argument and before
the defendant began [his] closing argument.” R., Supp. Vol. I, at 43; see 

(detailing reasoning for earlier denial of the motion). This description of
the sequence of events strongly suggests that the district court understood itself to
be denying the motion to reopen when it first was presented; it stated as much the
second time it addressed the issue, when the court gave its reasons for the earlier
denial of the motion.

                                        - 10 -
timely assertion of a right.’” United States v. Cruz-Rodriguez, 

,

1183 (10th Cir. 2009) (quoting United States v. Olano, 

, 733 (1993)).

We have explained repeatedly that “waiver is accomplished by intent, [but]

forfeiture comes about through neglect.” United States v. Zubia-Torres, 

, 1205 (10th Cir. 2008) (alteration in original) (quoting United States v.

Carrasco-Salazar, 

, 1272 (10th Cir. 2007)) (internal quotation

marks omitted), cert. denied, 

(2009); accord 

. “Waiver occurs when a party deliberately considers an issue and

makes an intentional decision to forgo it.” 

.

“As for the availability of appellate review, we have held that ‘a party that has

forfeited a right by failing to make a proper objection may obtain relief for plain

error; but a party that has waived a right is not entitled to appellate relief.’” 

494 F.3d at 1272).

      Here, Mr. Nick waived the issue of the timing of the consideration of his

motion. Not only did he fail to object to the district court’s suggested approach,

he explicitly agreed to it and acquiesced to any delay by answering affirmatively

the district court’s question: “And you agree that perhaps the best way to handle

this is let the jury go ahead and render its verdict and determine from that what

post-trial motions may be in order, if any?” R., Vol. III, at 434. Therefore, Mr.

Nick is not entitled to appellate review of his contention that the district court




                                          - 11 -
erred by delaying its consideration of his motion to reopen the evidence until it

was too late.

                B.   Merits of Denial

      Mr. Nick also argues that the district court abused its discretion in denying

his motion to reopen because the court did not provide an adequate explanation

and, more specifically, did not mention the factors that weighed in Mr. Nick’s

favor. 5 We conclude, however, that the district court did not abuse its discretion.

After reciting the factors outlined in United States v. Coward, 

, 181

(3d Cir. 2002), which we cited in United States v. Espinoza, 211 F. App’x 795


      5
             Mr. Nick now asserts for the first time on appeal that the district
court “did not examine ways in which the evidence of the newly received key
could [have been] fairly presented.” Aplt. Opening Br. at 28. At most, Mr.
Nick’s challenge to the district court’s action (or lack thereof) as to these
alternative ways—re-calling Ms. Santifer to testify, granting additional time to
the government for closing argument, or issuing a jury instruction not to give the
key undue weight based on its belated admission—is entitled to plain error
review. See United States v. Steele, 

, 808 (10th Cir. 2010); United
States v. Bedford, 

, 1153 (10th Cir. 2008), cert. denied, 

(2009).

       To establish plain error, Mr. Nick “must show: (1) an error, (2) that is
plain, which means clear or obvious under current law, and (3) that affects
substantial rights. If he satisfies these criteria, this Court may exercise discretion
to correct the error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Hasan, 

, 1133
(10th Cir. 2010) (quoting United States v. Goode, 

, 681 (10th Cir.
2007)) (internal quotation marks omitted). Most significantly, Mr. Nick has made
no argument that the district court’s purported error in failing to consider
alternatives of the type advanced by Mr. Nick affected his substantial rights or
seriously affected the fairness, integrity, or public reputation of the judiciary.
Thus, the district court did not plainly err.

                                        - 12 -
(10th Cir. 2007), the district court explained its reasoning in denying the motion

to reopen. The court found that the motion was untimely because it was made

after both parties had rested, the court had instructed the jury, and the government

had made its closing argument. The district court also questioned the reliability

of the evidence and noted that the prosecutor would have had no opportunity to

cross-examine anyone about the key if the court had allowed Mr. Nick’s attorney

to demonstrate that the second key fit the padlock during his closing. The district

court also explained that reopening the evidence would delay the trial “by an

additional day, if not days,” due to the government’s expressed desire to conduct

further investigation into the origins of the key, and that such a delay could not be

accommodated by the court’s or the jury’s schedules. The district court found

that Mr. Nick had not demonstrated a reasonable excuse for failing to present the

evidence in his case prior to resting, despite the fact that the government had

identified the lock in question and its significance well in advance of trial.

Additionally, the court noted that the key had apparently been in the possession of

a defense witness the whole time. Finally, the court found that the belated

introduction of the key into evidence would distort unduly its importance.

      In deciding whether a district court abused its discretion in denying a

motion to reopen the evidence, we consider the same factors the district court

considered when it made its decision: (1) “the timeliness of the motion”; (2) “the

character” of the evidence, including whether it is “relevant, admissible,

                                        - 13 -
technically adequate, and helpful to the jury in ascertaining the guilt or innocence

of the accused”; (3) “the effect of the granting of the motion”; (4) whether “[t]he

party moving to reopen” has “provid[ed] a reasonable explanation for fail[ing] to

present the evidence in its case-in-chief”; and (5) whether “[t]he belated receipt”

of the evidence would “imbue the evidence with distorted importance, prejudice

the opposing party’s case, or preclude an adversary from having an adequate

opportunity to meet the additional evidence offered.” 

(quoting United States v. Blankenship, 

, 741 (6th Cir. 1985))

(internal quotation marks omitted); see Espinoza, 211 Fed. App’x at 799.

      The district court gave both sides an opportunity to present arguments

concerning the motion to reopen. The government argued that it “would be

deprived of its right to cross-examine a witness about the authentication of the

exhibit,” and pointed out that allowing the admission of the key at that time,

given the focus of its closing, would deprive the government of a fair trial. R.,

Vol. III, at 432. The government further argued that it would be inclined to

“dispatch an agent to California to investigate” who had sent the key, “to

interview witnesses, to find out where this key came from, [and] to find out why

it came so late.” 

Mr. Nick’s attorney admitted that he had no

authority for his argument and that “the only argument I have is that the Court

would be depriving me of my Johnny [sic] Cochran, if the key fits, you must

acquit.” 

                                        - 14 -
      Mr. Nick now argues that the district court abused its discretion by failing

to consider any factors that favored granting the motion. However, Mr. Nick’s

efforts are unpersuasive. Mr. Nick argues that his motion was timely because the

additional key was presented as soon he discovered that it fit the padlock.

However, this argument fails to take into account that the government had already

presented its closing argument which repeatedly emphasized the absence of any

direct proof of additional keys.

      As to the second factor, Mr. Nick argues that the evidence “would clearly

have been admissible, important, and helpful to the jury.” Aplt. Opening Br. at

35–41. While Mr. Nick is correct that re-calling Ms. Santifer to testify as to the

origins of the key could have addressed some of the concerns of the government

and the court regarding the admissibility of the key, re-calling Ms. Santifer would

not have resolved those concerns completely. Counsel for Mr. Nick admitted Ms.

Santifer had not actually received the key; rather, an investigator with the public

defender’s office picked up the package from Ms. Santifer’s hotel and brought it

to the court. Therefore, Ms. Santifer’s testimony could shed no light on how the

key surfaced in the first instance. In addition, Ms. Santifer’s testimony would not

necessarily have reached the concerns that the government raised initially as to

the key’s foundation, such as who had found the key prior to apparently

transmitting it to Ms. Santifer, where it had been found, when and where the key

was made, and the reasons for the extreme delay in producing it.

                                        - 15 -
      Mr. Nick also argues that the third factor—the effect of granting the

motion—weighs in his favor because Ms. Santifer was still in town and available

to testify, and that the court’s conclusion that the delay would be a day, if not

multiple days, was unfounded. However, this argument fails to take into account

the government’s expressed desire to send someone to California to investigate

the origins of the key. The court was correct in deciding based upon the

information it had at that time that granting the motion could result in a

significant delay.

      As to the fourth factor, the district court did not abuse its discretion in

determining that Mr. Nick had not provided a reasonable explanation as to the

delay in presenting the evidence. In fact, Mr. Nick presented no explanation.

The district court was correct when it stated that Mr. Nick had known of the

importance of the evidence for a long time and that the evidence was apparently

in the possession of a defense witness that entire time. Thus, this factor weighs

against granting Mr. Nick’s motion to reopen.

      Finally, the district court did not abuse its discretion in determining that the

disclosure of the key at that belated time would prejudice the government’s case

and preclude the government from adequately addressing it. The government

needed several additional days to investigate the circumstances of the appearance

of the key. If the district court had allowed the key to be received into evidence

without such an investigation, the government could not have adequately

                                         - 16 -
addressed the new evidence. Therefore, because the district court’s decision to

deny the motion to reopen was not arbitrary, capricious, whimsical, or manifestly

unreasonable, the court did not abuse its discretion.

      II.    Motion for New Trial

      We review the denial of a motion for new trial for an abuse of discretion.

United States v. Poole, 

, 918 (10th Cir. 2008). As 

, a

district court only abuses its discretion if its decision is arbitrary, capricious,

whimsical, or manifestly unreasonable. 

. And if a district

court commits a legal error by applying the wrong legal standard, such an error

ordinarily will be tantamount to an abuse of discretion. See, e.g., Lorillard

Tobacco Co. v. Engida, 

, 1213 (10th Cir. 2010) (citing 

).

      Mr. Nick asserts that the district court committed a legal error in denying

his motion for new trial, and thus abused its discretion, when it analyzed the

motion only under the stringent standard applied to newly discovered evidence

and ignored the interest-of-justice rubric. 6 He contends that the district court

      6
             Federal Rule of Criminal Procedure 33 allows a district court to grant
a new trial “if the interest of justice so requires.” Fed. R. Crim. P. 33(a).
However, in considering whether to grant a motion for new trial based on newly
discovered evidence the defendant must show:

             (1) the evidence was discovered after trial; (2) the failure to learn
             of the evidence was not caused by his own lack of diligence; (3)
             the new evidence was not merely impeaching; (4) the new
                                                                          (continued...)

                                         - 17 -
erred by applying the more stringent factors in 

, because he made

his motion within seven days of the verdict and his motion was not based on

newly discovered evidence. 7 He argues, instead, that the district court should

have considered “the interest of justice” alone in deciding whether to grant or

deny his motion.

      Mr. Nick points to United States v. Scroggins, 

, 253–54 (5th

Cir. 2004), judgment vacated on other grounds, 

(2005), to support

this contention. In Scroggins, the defendant did not expressly base his motion on

newly discovered evidence though he did mention the standard briefly. 

          (...continued)
                evidence is material to the principal issues involved; and (5) the
                new evidence is of such a nature that in a new trial it would
                probably produce an acquittal.

United States v. Sinclair, 

, 1531 (10th Cir. 1997) (quoting United
States v. Stevens, 

, 570 (10th Cir. 1992)) (internal quotation marks
omitted). A motion based only on newly discovered evidence must be filed
within three years of the verdict, while a motion based on any other ground must
be filed within seven days. Fed. R. Crim. P. 33(b). The 2009 Amendments
(effective December 1, 2009) extended the other-grounds deadline to fourteen
days.
      7
              Mr. Nick also argues that the district court erred by speculating that
Mr. Nick had an improper motive for seeking to reopen the
evidence—specifically, that Mr. Nick purportedly sought to sanitize the evidence
offered by Ms. Santifer who had credibility problems. In its order denying Mr.
Nick’s motion for reconsideration, however, the district court accepted the
defendant’s proffer as to his motivation and the timing of the request. Therefore,
the district court’s second order makes clear that the district court was not basing
its decision to deny the motion for new trial on a possibly improper motive by the
defense. As a result, the district court did not abuse its discretion in speculating
on a possibly improper motive by the defense.

                                          - 18 -
at 238, 254 & n.42. The Fifth Circuit held that “[a] district court may grant a new

trial where it finds that a miscarriage of justice may have occurred at trial.” 

(internal quotation marks omitted). The Fifth Circuit went on to explain that

“[a] miscarriage of justice warranting a new trial in certain circumstances may

occur even when there has been no specific legal error.” 

the

district court’s consideration of the Sinclair factors rather than the interest-of-

justice rubric, the Fifth Circuit remanded the case to the district court to consider

whether Mr. Scroggins’s motion should be granted in the interest of justice. 

       Yet, a strong argument could be made that Mr. Nick has waived his

challenge to the district court’s disposition of his motion for new trial, insofar as

the argument is based on the court’s alleged application of the wrong legal

standard. 8 We need not reach a definitive conclusion on this waiver issue,

       8
             We have explained repeatedly that the invited error doctrine
“prevents a party who induces an erroneous ruling from being able to have it set
aside on appeal.” United States v. DeBerry, 

, 1302 (10th Cir. 2005)
(quoting United States v. Burson, 

, 1203 (10th Cir. 1991)) (internal
quotation marks omitted). “Our invited error doctrine prevents a defendant or
counsel from lying in wait for potential mistakes, and then seeking to reverse the
outcome of trial.” United States v. Oldbear, 

, 826 (10th Cir.), cert.
denied, 

(2009). As we have noted:

             [T]he doctrine of invited error “is based on reliance interests
             similar to those that support the doctrines of equitable and
             promissory estoppel. Having induced the court to rely on a
             particular erroneous proposition of law or fact, a party . . . may
             not at a later stage . . . use the error to set aside the immediate
                                                                         (continued...)

                                         - 19 -
however. Even if we were to conclude that Mr. Nick had not waived this

argument, the outcome of this case would be the same.

      On the merits, as the government suggests, Mr. Nick’s contention of error

rests on slim legal foundation—that is, it rests almost entirely on the Fifth

Circuit’s decision in Scroggins, which of course does not bind us. More

importantly, we conclude that any error Mr. Nick might establish concerning the

district court’s choice of legal standard was harmless. Although the government

appears not to have argued harmless error in connection with the district court’s

resolution of the motion for new trial (as it did with respect to the court’s

      8
          (...continued)
                consequences of the error.”

(quoting Fryman v. Fed. Crop Ins. Corp., 

, 249 (6th Cir. 1991)). Invited error is a form of intentional relinquishment of
a known right—that is, a form of waiver. And when an issue is waived, it is not
subject to review on appeal. See 

; see also
United States v. Teague, 

, 1314–15 (10th Cir. 2006) (holding that
invited error is a form of waiver, which will we not review even for plain error).
We may consider an issue of waiver sua sponte. See United States v. Mancera-
Perez, 

, 1057 n.3 (10th Cir. 2007).

       In his motion for new trial, Mr. Nick made arguments under both the
interest of justice standard and the newly discovered evidence standard of
Sinclair. The district court primarily chose to analyze his motion under the
Sinclair factors for newly discovered evidence, and Mr. Nick did not object to
this choice in his motion for reconsideration. In other words, Mr. Nick provided
the district court with the legal standard it used; thus, a strong argument could be
made that he invited any error related to the district court’s choice of this legal
standard. As noted, we need not definitively resolve the waiver issue, however.
Even if Mr. Nick did not waive his challenge to the district court’s choice of legal
standard, as detailed infra, the court’s ruling on his motion for new trial should
not be disturbed.

                                         - 20 -
disposition of the motion to reopen), on this record, “the certainty of the

harmlessness is readily apparent.” United States v. Holly, 

, 1308

(10th Cir. 2007).

      In particular, Mr. Nick failed to show that the second key would be

admissible. While he asserts that Ms. Santifer was still available and could have

been recalled to testify about the key, she was not the person who found it, so she

could not explain where it was found, who found it, and where it had been for all

of the time leading up to the trial. In addition, she was not even the person who

brought it to the courthouse. Therefore, she could not provide an adequate

foundation concerning the origins of the key to permit its admission into

evidence. In sum, even if the court erred in selecting the controlling legal

standard to adjudicate Mr. Nick’s motion for a new trial, the second key would

not have been admissible and thus any such error was harmless.

      Furthermore, although the second key’s inadmissibility is determinative in

itself, we note that the district court quite reasonably concluded that the key was

not central to the government’s case and its admission would not have been

material—viz., its admission would not have affected the outcome of the trial.

Both defense witnesses, Mr. Patrick and Ms. Santifer, testified about the

possibility of a second key’s existence; therefore, this information was before the

jury and it was free to draw exculpatory inferences from it. Moreover, the district

court provided several specific reasons why the key was merely impeaching,

                                        - 21 -
rather than compelling, evidence, and why the key was peripheral to the central

focus of the case. In sum, irrespective of any error by the district court in the

choice of a legal standard, we conclude that the district court’s order denying Mr.

Nick’s motion for new trial should not be disturbed.

                                   CONCLUSION

      For the foregoing reasons, we AFFIRM Mr. Nick’s conviction.



                                        ENTERED FOR THE COURT


                                        Jerome A. Holmes
                                        Circuit Judge




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