HOLMES, Circuit Judge.
Defendant-Appellant Richard Clark was charged and convicted of multiple counts relating to his participation in a "pump-and-dump" securities fraud scheme. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Clark's conviction.
This case arises from a classic pump-and-dump scheme that was orchestrated principally by Mr. Clark's co-defendant, George David Gordon. In a separate opinion, we recently affirmed Mr. Gordon's convictions and sentence. See United States v. Gordon, 710 F.3d 1124 (10th Cir. 2013). In doing so, we set forth in considerable detail the relevant factual and procedural background related to the government's prosecution of the pump-and-dump scheme. See id. at 1128-33. Consequently, we will not fully reiterate that discussion here. Instead, we offer at the outset a factual and procedural overview, and then in connection with the resolution of Mr. Clark's specific legal challenges, we explicate necessary additional facts.
In summary, the government alleged that Messrs. Gordon and Clark and other
The conduct in this case can be traced back to 2004 when Mr. Gordon began dealing with Mark Lindberg and Joshua Lankford, two Dallas stock promoters — both co-conspirators — and collaboratively targeting with them various companies for the fraudulent scheme's purposes. Through a sequence of transactions, the conspirators established and fraudulently promoted the stock of three companies: National Storm Management ("National Storm"), Deep Rock Oil & Gas ("Deep Rock"), and Global Beverage Company ("Global Beverage"). See id. at 1129-32.
In 2004, SEC official Samuel Draddy began looking into an unrelated Pink Sheet
After taking a deeper look, investigators noticed that the companies under consideration evinced similar patterns where "the people involved owned shells, [that] were publicly-traded issuers that had no legitimate business purpose, ... [and] [t]hey would ... get private companies to reverse-merge into these shells so they could get publicly traded." Id. at 1754; see also id., Vol. I, at 55 (noting in the instant indictment that "[t]o obtain the free trading shares, the perpetrators may orchestrate a reverse merger, which occurs when a privately held company with no publicly traded stock merges with a publicly listed shell company that has no assets or revenue but has stock available for public trading, resulting in a public company"). Based on this discovery, the investigators turned their attention to the activities of the companies involved in this case. During that investigation, Mr. Clark testified before the SEC. He made various statements, including an allegedly false denial that he controlled nominee entities involved in the Deep Rock trading scheme.
In July 2007, approximately eighteen months prior to the commencement of criminal proceedings against Mr. Clark, the government placed a caveat on his residence. See generally Black's Law Dictionary 252 (9th ed. 2009) (defining "caveat" as "[a] warning or proviso"). No notice was given to Mr. Clark at that time, and he was not aware of the caveat until July 2008 "when he was attempting to obtain funds to retain counsel." Aplt.
On January 15, 2009, the grand jury returned a twenty-four-count indictment against the members of the conspiracy, including Mr. Clark. Mr. Clark was named in Counts 1-21: specifically, conspiracy (Count 1), in violation of 18 U.S.C. § 371; wire fraud (Counts 2-10), in violation of 18 U.S.C. §§ 1343 and 2(a); securities fraud (Counts 11-15), in violation of 15 U.S.C. §§ 78j(b), 78ff, 17 C.F.R. § 240.10b-5, and 18 U.S.C. § 2(a); and money laundering (Counts 16-21), in violation of 18 U.S.C. §§ 1957(a) and 2(a).
At trial,
Mr. Clark asserts numerous grounds of error. He claims that the pretrial placement of the caveat on his property violated his constitutional rights and that the evidence was insufficient to convict him. He further contests the district court's refusal to appoint an additional or a substitute defense counsel who was well versed in complex securities matters and the court's failure to sever his trial from Mr. Gordon's. He also contends that his rights under the Speedy Trial Act were violated by the roughly fourteen-month delay between the filing of the indictment and commencement of trial. We address each contention but discern no reversible error.
Mr. Clark claims that "[t]he government violated [his] constitutional rights to due process and a fair trial" in its pre-indictment decision to place a caveat on his home, without notice. Aplt. Opening Br.
Mr. Clark claims that the government acted wrongfully in imposing the caveat on his house. He reasons that his house was not forfeitable property.
"We review de novo the extent of constitutional rights...." Jones, 160 F.3d at 645; see United States v. Rivas-Macias, 537 F.3d 1271, 1276 (10th Cir.2008). However, when a defendant does not properly raise a challenge in the district court, and "there is no suggestion of a knowing, voluntary failure to raise the [claim]," it is forfeited and our "rigorous plain-error standard governs our review." United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.2011). Under this rigorous standard, a defendant must demonstrate: "(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 [4] it seriously affects the fairness, integrity, or public
Jones was decided in the post-indictment, pretrial context. See 160 F.3d at 645 ("[W]e next address whether due process nevertheless requires a pre-trial hearing at which defendants may challenge the grand jury's findings."). There, we concluded that "[t]he procedural aspect of the Fifth Amendment Due Process Clause," id., provides a defendant with some ability to "test the [government's] forfeiture allegations," id. at 646. Pertinently, we reasoned that the "private interests" at stake when access to property is impeded — specifically, the Sixth Amendment right to counsel of choice and the payment of living expenses — together with the "risk of an erroneous deprivation through [pretrial restraint procedures,]" weighed in favor of a post-restraint, pretrial adversarial hearing "at which the government must establish probable cause to believe that the restrained assets are traceable to the underlying offense." Id. at 646-47.
We noted, however, that "[d]ue process does not automatically require" such a hearing. Id. at 647. A hearing should be held "only upon a properly supported motion by a defendant," wherein he must (1) "demonstrate to the court's satisfaction that []he has no assets, other than those restrained, with which to retain private counsel and provide for [him]self and [his] family"; and (2) "make a prima facie showing of a bona fide reason to believe the grand jury erred in determining that the restrained assets" are forfeitable property. Id.; see also United States v. Kaley, 579 F.3d 1246, 1254-55 (11th Cir.2009) (conducting a similar inquiry).
In this case, the government imposed a caveat under Oklahoma law on Mr. Clark's house roughly eighteen months prior to his indictment, but Mr. Clark was never provided notice or a subsequent hearing. We assume without deciding that an Oklahoma caveat constitutes a pretrial restraint of assets sufficient to trigger a defendant's procedural due process rights under Jones.
Mr. Clark learned about the caveat in July 2008 — a year after it had been imposed and six months prior to his indictment. But he never properly asked the district court for a post-restraint hearing regarding the caveat under our decision in Jones. That is, he never filed the motion that Jones requires, never properly alerted the district court to his desire for a Jones hearing, and nowhere sought to demonstrate that he could satisfy the test that Jones sets forth. Accordingly, the district court had no reason to conclude that Mr. Clark's interests were in jeopardy and required protection through a hearing. See Jones, 160 F.3d at 647 ("[A] post-restraint, pretrial hearing [is required] only upon a properly supported motion by a defendant. Due process does not automatically require a hearing....").
The procedures required by our decision in Jones are in place to protect a defendant from an intrusion upon his property interest without due process. See id. at 645-46 ("[A] restraining order issued under section 853(e)(1)(A) deprives one of property even though the assets named in the indictment are only frozen and may eventually be returned."); cf. 21 U.S.C. § 853(e)(1). A defendant cannot successfully establish that a district court's decision deprived him of the affirmative protections inherent in a Jones hearing when the defendant has not properly alerted the court to the need for such a hearing. Cf. Kirkland v. St. Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1195 (10th Cir. 2006) ("Although [the plaintiff] could have immediately filed a grievance challenging his suspension, he chose not to do so. In light of that, he cannot now allege that the individual Defendants deprived him of post-suspension due process."); Luellen v. City of E. Chicago, 350 F.3d 604, 616 (7th Cir.2003) (noting that because "[the litigant] was provided with the opportunity for additional procedures to vindicate his rights but did not avail himself of those opportunities, ... the requirements of due process were satisfied"). Accordingly, we conclude that Mr. Clark has not satisfied the first prong of the plain-error test — viz., he has not shown that the district court erred at all.
Finally, we note that Mr. Clark claims in passing that the placement of the caveat "deprived [him] of his Sixth Amendment right to a fair trial," and "violated [his] right to counsel." Aplt. Opening Br. at 11-12. We reject these arguments. First, we interpret Mr. Clark's claim that he was denied a fair trial under the Sixth Amendment as a duplicative pulsation of his arguments under Jones. He provides nothing in his brief that would suggest that the argument supports a separate averment of error on appeal.
Second, we also reject Mr. Clark's claim that the government's conduct impermissibly infringed on his Sixth Amendment right to counsel of choice. Mr. Clark failed to raise this claim in a legally cognizable manner before the district court. To be sure, in the amended motion to withdraw of Mr. Clark's trial counsel, counsel did suggest that the government's conduct violated Mr. Clark's Sixth Amendment right to counsel. And, in positing a possible "solution" to the dilemma, Mr. Clark's attorney set forth a number of hypothetical resolutions, including "dismissal of the charges against Mr. Clark at least for all of the reasons set forth in the David Gordon motion." R., Vol. I, at 179.
However, the motion of Mr. Clark containing this comment was geared primarily toward seeking either withdrawal of counsel because of Mr. Clark's failure to pay legal fees, or remedies so that Mr. Clark could obtain the necessary income to compensate current counsel, i.e., severance or a continuance of trial. See id. at 177 (seeking "withdraw[al]," "severance," or "continuance"). This single, unadorned statement alluding to a separate, potential Sixth Amendment right-to-counsel claim could not reasonably alert the district court to such a claim, at least in the form that the claim is presented here. Indeed, both the magistrate judge (in resolving the motion) and the government (in responding) expressly declined to speculate on the contours of Mr. Clark's allegations. See, e.g., id., at 344 n. 1 ("The Court declines to address this one-sentence unsupported suggestion that the charges should be dismissed.").
In sum, the district court was not afforded the "opportunity to consider the question." United States v. Norman T, 129 F.3d 1099, 1106 (10th Cir.1997). Consequently, we review it only for plain error, as we did Mr. Clark's due process claim. See United States v. Lamirand, 669 F.3d 1091, 1098 n. 7 (10th Cir.2012).
Under plain-error review, at the very least, Mr. Clark's claim fails under the third prong. In making his skeletal right-to-counsel argument, like (his co-defendant) Mr. Gordon, Mr. Clark relies on the district court and Second Circuit decisions in the Stein criminal case. See United States v. Stein, 541 F.3d 130 (2d Cir.2008); United States v. Stein, 435 F.Supp.2d 330 (S.D.N.Y.2006); see also Gordon, 710 F.3d at 1137 (noting that Mr. Gordon "heavily relies" on Stein). Similar to the fate of Mr. Gordon's argument, Mr. Clark's right-to-counsel
In this regard, it is significant that the district court found $225,214.81 of equity in Mr. Clark's house — the property subject to the government's caveat — to be forfeitable property because certain "payments for remodeling and the mortgage" were proceeds "traceable ... to the conspiracy." R., Vol. VI, at 1047 (Order for Criminal Forfeiture, filed Sep. 15, 2010). That finding has support in the record. See id., Vol. II, at 45 (Aff. of William Robert Taylor, filed June 25, 2010) (stating that a "significant amount" of the proceeds of stock sales directly at issue in the case "were paid directly out of [Mr. Clark's] brokerage account for residence related expenses"). And it significantly undercuts any suggestion that Mr. Clark's substantial rights were affected by any district court error in addressing the government's caveat on his home.
In particular, nothing in the Constitution "requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay ... legal fees." United States v. Monsanto, 491 U.S. 600, 614, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989); see Caplin & Drysdale, 491 U.S. at 632, 109 S.Ct. 2646 (rejecting the "claim of a Sixth Amendment right of criminal defendants to use assets that are the Government's — assets adjudged forfeitable ... — to pay attorneys' fees"). And, in his threadbare argument, Mr. Clark has not attempted to demonstrate that any remaining equity in his home — beyond the amount subject to forfeiture — would have materially assisted him in employing or paying counsel. Accordingly, in light of the district court's forfeiture finding regarding the home, we would be hard-pressed to conclude that Mr. Clark satisfied the third prong of plain-error review.
Second, as in Gordon, Mr. Clark's claim of prejudice is nigh eviscerated (if not completely so) by his ongoing, active representation throughout his trial by the counsel that he initially retained. See 710 F.3d at 1139 ("[U]nlike Stein, it is quite significant that Mr. Gordon's counsel remained fully and actively engaged in the case throughout the entire trial court proceedings."). More specifically, as we recount in further detail infra (Part II.C), even prior to his indictment, Mr. Clark retained a very experienced criminal defense attorney, Allen Smallwood, and Mr. Smallwood represented Mr. Clark throughout the trial proceedings. And, even a cursory examination of the trial transcript would reveal that Mr. Smallwood advocated for Mr. Clark "in a thorough and vigorous fashion." Id. Accordingly, for this reason as well, Mr. Clark cannot demonstrate that any error by the district court affected his substantial rights (i.e., satisfied the third prong of plain error). In sum, for the foregoing reasons, we reject Mr. Clark's constitutional challenges that stem from the government's imposition of a caveat on his home.
Mr. Clark challenges the sufficiency of the evidence on all of his counts of conviction. Mr. Clark was convicted of one count of conspiracy to commit wire fraud, securities fraud, and money laundering; seven counts of wire fraud; five counts of securities fraud; and one count of money laundering. The district court denied Mr. Clark's motion for judgment of acquittal.
"In reviewing the sufficiency of the evidence and denial of a motion for judgment of acquittal, this court reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt." United States v. Irvin, 682 F.3d 1254, 1266 (10th Cir.2012). The court may "not weigh conflicting evidence" in its review. Id. (quoting United States v. Evans, 318 F.3d 1011, 1018 (10th Cir.2003)) (internal quotation marks omitted). We must "consider[] the entire record, including both direct and circumstantial evidence, together with the reasonable inferences to be drawn from it." United States v. Mendez, 514 F.3d 1035, 1041 (10th Cir. 2008).
Mr. Clark first asserts that the government failed to establish that he was involved in "an agreement to commit an unlawful act," as required to support the conspiracy charge. See, e.g., United States v. Weidner, 437 F.3d 1023, 1033 (10th Cir.2006) (quoting United States v. Morehead, 959 F.2d 1489, 1500 (10th Cir. 1992)) (internal quotation marks omitted).
The evidence need not show an express agreement to support a conspiracy charge. See Cooper, 654 F.3d at 1115-16. "[T]he agreement requirement may be satisfied entirely through circumstantial evidence," id. at 1116; that is, it "may be inferred from the facts and circumstances of the case," id. at 1115-16 (quoting United States v. Sells, 477 F.3d 1226, 1236 (10th Cir.2007)) (internal quotation marks omitted). Such facts and circumstances include "the joint appearance of defendants at transactions and negotiations furthering the conspiracy, the relationship among co-defendants, and their mutual representations to third parties." United States v. Dowlin, 408 F.3d 647, 657 (10th Cir.2005). Furthermore, "[i]n order to sustain a jury's determination of guilt, the record need show only `slight evidence of a particular defendant's connection with a conspiracy that has already been established through independent evidence.'" United States v. Dickey, 736 F.2d 571, 583 (10th Cir.1984) (quoting United States v. Petersen, 611 F.2d 1313, 1317 (10th Cir. 1979)); see also United States v. Hamilton, 587 F.3d 1199, 1207 (10th Cir.2009) (noting that "[t]he connection of the defendant to the conspiracy need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt" (alteration in original) (quoting United States v. Tranakos, 911 F.2d 1422, 1430 (10th Cir.1990)) (internal quotation marks omitted)).
Based upon record evidence quite apart from Mr. Clark, it is beyond peradventure that Mr. Gordon and others were involved in a pump-and-dump conspiracy. See Gordon, 710 F.3d at 1129-32. Focusing then on Mr. Clark's alleged role in that conspiracy, taken in the light most favorable to the government, there was ample record evidence that he was an active participant in it. Mr. Clark was installed as Global Beverage's president because he was "in with the plan" to manipulate the stock. See R., Vol. VIII, at 186-87 (Test. of Mark Lindberg, dated Apr. 7, 2010). In that role, he approved a misleading brochure touting Global Beverage's financial prospects; then, only a few months later, he filed a report with the SEC questioning whether the company could continue as a going concern. See id. at 2291-93 (Test. of Jarom Gregory, dated Apr. 26, 2010).
In sum, this evidence demonstrates both Mr. Clark's extensive involvement in the conspiracy's activities and his related intent to defraud investors. See United States v. Jenkins, 633 F.3d 788, 804 (9th Cir.2011) (holding that there was sufficient evidence of intent to defraud investors, relating to an alleged pump-and-dump conspiracy, where the defendant "helped create... offshore corporations holding [the target company's] stock, helped to sell the stock, and helped to move the various proceeds to accounts controlled by [other co-conspirators], and, further, ... [disseminated] false and misleading [online posts]" regarding the stock); Dowlin, 408 F.3d at 658 (concluding that the jury could have found that the defendant participated in a fraudulent scheme, where the evidence suggested that she knew the purpose of the scheme and willingly participated); see also United States v. Whiteford, 676 F.3d 348, 357-58 (3d Cir.2012) (concluding that there was sufficient evidence of a defendant's participation in a conspiracy, where he intended the conspiracy to continue so that he could "reap personal benefits" from it); United States v. Whitney, 229 F.3d 1296, 1301-02 (10th Cir.2000) (holding that the evidence was sufficient to sustain a conspiracy conviction where the government showed, among other things, that the defendant shared a motive to complete the conspiracy's ultimate object and provided false evidence to effect a cover-up).
Mr. Clark highlights the fact that, at one point, he sold Deep Rock stock "out of line," which he calls "strong evidence that he was not involved in any alleged conspiracy." Aplt. Opening Br. at 25 (quoting R., Vol. VIII, at 207-09) (internal quotation marks omitted). By way of background, consistent with the overall approach of the charged conspiracy, the conspirators were engaged in the manipulation of Deep Rock's stock price through the "coordinated trading" of its stock, and "part of the coordinated trading was to make sure that the stock [price] kept gradually going upwards." R., Vol. VIII, at 207; see id. at 153 (noting that it was the conspirators' "plan for the steady, gradual growth of the stock price of Deep Rock"). Mr. Clark was detected by some of the conspirators selling Deep Rock stock "out of turn" (presumably to make more short-term profits) — meaning that he "sold more shares than what he should have and the stock actually stalled out" at a certain price, instead of continuing to gradually climb upward. Id. at 207.
We conclude, however, that this fact — standing alone — does little to undercut the potency of the other evidence establishing Mr. Clark's culpability for the charged conspiracy. This is particularly true because Mr. Clark's alleged act of rebellion was short-lived and pusillanimous. In this regard, the evidence shows that Mr. Clark did not continue selling out of turn; shortly after his co-conspirators learned of his conduct, Mr. Gordon, "took care of it" by contacting Mr. Clark and getting him to "get back in line" with the conspirators' plan. Id. at 209, 211. Therefore, rather than suggesting to a rational factfinder that Mr. Clark was not involved in the
In sum, there was sufficient evidence for any rational factfinder to determine that Mr. Clark was a member of the charged pump-and-dump conspiracy. Accordingly, we reject Mr. Clark's sufficiency-of-the-evidence challenge to the conspiracy charge.
Mr. Clark claims that the evidence on the wire fraud charge was insufficient to support his conviction because the government failed to prove that he intended to defraud investors through his participation in the scheme. See United States v. Welch, 327 F.3d 1081, 1104 (10th Cir.2003) (explaining that the elements of wire fraud include "an intent to defraud"). However, the evidence already set forth is more than sufficient to support a rational jury's finding that Mr. Clark had an intent to defraud.
Mr. Clark makes much of the fact that, in the promotional materials that were sent to potential buyers, he had no duty to disclose his intent to sell shares. Duty or not, the promotional materials contained false and misleading information. See, e.g., R., Vol. VIII, at 3144-48 (Test. of Mark Lindberg, dated Apr. 6, 2010). Moreover, Mr. Clark was engaged in coordinated selling to inflate the sales price of stock, id. at 207-12; and he later profited significantly, id. at 174-75. Any rational trier of fact could infer easily that Mr. Clark possessed a fraudulent intent based on this evidence. See Jenkins, 633 F.3d at 804.
Mr. Clark further challenges the sufficiency of the evidence on the securities fraud counts (Counts 11-15). "Under 15 U.S.C. § 78j(b), any person who uses or employs a manipulative or deceptive device in connection with the sale of any security commits securities fraud." Id. at 801-02. And Rule 10b-5, which implements § 78j(b), "forbids the making of `any untrue statement of a material fact.'" Id. at 802 (quoting 17 C.F.R. § 240.10b-5(b)).
Mr. Clark does not allege that the evidence was insufficient on any specific element of the securities fraud offense. Rather, he claims that the government failed to establish securities fraud because (1) "there is always risk involved" in trading penny stocks, (2) Mr. Clark had no duty to disclose in the promotional materials his intention to sell shares, and (3) the fact that he sold shares out of line with the rest of the group suggests that "he was not connected to any agreement to defraud." Aplt. Opening Br. at 28. We reject the latter two contentions for the reasons that we articulated supra in disposing of Mr. Clark's challenges to his conspiracy and wire fraud convictions.
As for the first contention, it may be quite true that trading in penny stocks is risky. See Hoxworth v. Blinder, 74 F.3d 205, 207 n. 1 (10th Cir.1996) ("`Penny stocks' are low-priced, high risk equity securities. The securities are frequently traded outside well-established trading markets." (emphasis added)); accord Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 175 n. 14 (3d Cir.2001). However, on this record, this fact is completely irrelevant. The magnitude of the risk accompanying an investment does not mean its investors are any less harmed by fraudulent conduct; even investors who are inclined to tolerate a great deal of risk are legally entitled under the securities laws to be protected from fraudulent conduct that distorts their picture of the material variables associated with the investment. See, e.g., United States v. Russo, 74 F.3d 1383, 1393-95 (2d Cir.1996) (rejecting multiple challenges to defendants' mail fraud and securities fraud convictions, stemming from defendants' unlawful scheme to, inter alia, manipulate the price of penny stocks). Mr. Clark and his co-conspirators engaged in manipulations of penny stock that had just such a distorting effect. Put simply, in light of the evidence against Mr. Clark, any rational trier of fact could conclude that he, along with others in the conspiracy, committed securities fraud.
Finally, of the six counts in the indictment relating to money laundering, the jury convicted Mr. Clark of only one — Count 18; it alleged that the defendants transmitted $245,000 of funds derived from the conspiracy. Mr. Clark challenges the sufficiency of the evidence regarding this count, contending that there was no evidence that any transfer of funds forming the basis for this money laundering charge directly involved him. The government concedes that Mr. Clark "was not personally involved in the transaction on which his money laundering conviction ... was based." Aplee. Br. at 28. Instead, the government argues that Mr. Clark is liable under a Pinkerton theory.
Under the Supreme Court's decision in Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), "a defendant [may be held] responsible for the crimes of his co-conspirators, if those crimes are committed to help advance the conspiracy and are within the reasonably foreseeable scope of the conspiracy." Irvin, 682 F.3d at 1274; see also United States v. Rosalez, 711 F.3d 1194,
Thus, we reject Mr. Clark's suggestion that he could not be found criminally liable for Count 18 because he did not personally participate in the monetary transaction at issue. See United States v. Moreland, 622 F.3d 1147, 1169 (9th Cir.2010) ("Pursuant to the Pinkerton doctrine, sufficient evidence exists in this case to uphold [the defendant's] convictions for the substantive money laundering charges provided that: (1) there is sufficient evidence to uphold his conviction for conspiracy, (2) the money laundering offenses were committed in furtherance of the conspiracy while [the defendant] was a member of the conspiracy, and (3) the actions providing the basis for the substantive charges were reasonably foreseeable to [the defendant]."); United States v. Sullivan, 522 F.3d 967, 977 (9th Cir.2008) ("Even if [the defendant] was not directly involved in the wire transfers [to conceal proceeds of an unlawful bankruptcy fraud scheme], a rational juror could have found that the transfers were reasonably foreseeable to him as part of the conspiracy...."); see also Rosalez, 711 F.3d at 1207 (holding that a defendant convicted of conspiracy to assault the victim could be held responsible under Pinkerton for the victim's murder, even though he was not present during the assault, because "the murder of [the victim] was not an act that occurred separately from the assault [i.e., the object of the conspiracy], but rather was a direct, and entirely foreseeable, result of the vicious assault carried out on him"); United States v. Silvestri, 409 F.3d 1311, 1336 (11th Cir. 2005) ("[T]he Pinkerton doctrine has been applied to money laundering conspiracy cases; a defendant who joins a money laundering conspiracy may be found substantively liable for money laundering offenses committed by co-conspirators."). Accordingly, Mr. Clark's sufficiency-of-the-evidence challenge to Count 18 is unavailing.
Mr. Clark claims that he was denied a fair trial when the district court rejected his request under provisions of the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A, to appoint substitute or additional counsel with expertise in securities law.
Mr. Clark argues that this denial violated his right to a fair trial. He draws our attention to two things: first, that the CJA requires that more than one attorney be appointed in an extremely difficult case; and second, that the government moved successfully for a declaration under the Speedy Trial Act that the case was "complex" and required more extensive preparation and a continuance of the trial, see R., Vol. I, at 103 (Unopposed Mot. of United States to Declare This Case a Complex Matter, filed Feb. 26, 2009) (referencing 18 U.S.C. § 3161(h)(7)(A)-(B)
We review the district court's denial of a motion to substitute counsel for an abuse of discretion. See United States v. Hutchinson, 573 F.3d 1011, 1024 (10th Cir.2009); United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir.1999). To warrant substitution, a defendant must demonstrate "good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." Hutchinson, 573 F.3d at 1024 (quoting United States v. Beers, 189 F.3d 1297, 1302 (10th Cir.1999)) (internal quotation marks omitted); see United States v. Byrum, 567 F.3d 1255, 1265-66 (10th Cir.2009) (discussing factors applicable in addressing this issue). The overriding question is whether the district court's decision was one of the "rationally available choices given the facts and the applicable law in the case at hand." Hutchinson, 573 F.3d at 1024 (quoting Shook v. Bd. of Cnty. Comm'rs, 543 F.3d 597, 603 (10th Cir. 2008)) (internal quotation marks omitted).
"As CJA matters rarely generate published decisions," United States v. Romero-Gallardo, 245 F.3d 1159, 1160 (10th Cir.2001), there is little authority on the standard of review applicable to a district
Guided by these authorities,
As for the scope and content of the district court's inquiry concerning requests to add counsel, we find instructive decisions addressing whether to permit CJA funding for "investigative, expert, and other services necessary for adequate representation," United States v. Solon, 596 F.3d 1206, 1209 (10th Cir.2010) (quoting 18 U.S.C. § 3006A(e)(1)) (internal quotation marks omitted); cf. United States v. Kennedy, 64 F.3d 1465, 1473-74 (10th Cir. 1995) ("An indigent defendant is not entitled to all the assistance that a wealthier counterpart might buy, but rather only to the basic and integral tools."), a decision that we also review for an abuse of discretion, see Solon, 596 F.3d at 1210 ("`Appointing an expert is within the discretion of the [c]ourt,' therefore, we review the denial of a CJA funding request for an abuse of discretion." (alteration in original) (citation omitted) (quoting United States v. Ready, 574 F.2d 1009, 1015 (10th Cir. 1978))). And in such instances, "the defendant must do more than allege that [an expert's] services would be helpful." Kennedy, 64 F.3d at 1470. Rather, he "must convince the court that the [additional] services are `necessary to an adequate defense.'" Solon, 596 F.3d at 1209-10 (quoting United States v. Greschner, 802 F.2d 373, 376 (10th Cir.1986)).
We note that, unlike a defendant's right to spend his own money ad infinitum on counsel of his choosing, see United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the right to court-appointed counsel
Applying the abuse-of-discretion standard to the district court's denial of Mr. Smallwood's motion for appointment of substitute or additional counsel, we conclude that the district court acted within its discretion. The record shows that Mr. Smallwood is a highly experienced criminal defense attorney. Further, Mr. Clark hired him even prior to the return of the indictment, while the government was investigating the activities of Mr. Clark and his alleged co-conspirators. Thus, by the time of Mr. Smallwood's CJA motion, he had represented Mr. Clark for approximately two-and-a-half years — ample time to become familiar with the facts and law applicable to Mr. Clark's case.
There is no indication of a breakdown in communication between Mr. Clark and Mr. Smallwood, nor a conflict of interest on Mr. Smallwood's part, that would justify substitution of counsel, see Hutchinson, 573 F.3d at 1024, even considering the fact that Mr. Clark could ostensibly no longer pay the balance of his legal fees, see United States v. O'Neil, 118 F.3d 65, 71-72 (2d Cir.1997) ("There is little question that a defendant's failure to pay fees may cause some divisiveness between attorney and client, but we presume that counsel will continue to execute his professional and ethical duty to zealously represent his client, notwithstanding [a] fee dispute.").
Furthermore, in light of Mr. Smallwood's criminal-defense experience and his conduct in the case, the district court could quite reasonably conclude that Mr. Smallwood's representation was sufficient for an adequate defense. In other words, it could reasonably conclude that an additional attorney — even one more familiar with securities law — was not "necessary to an adequate defense." See Solon, 596 F.3d at 1209-10 (emphasis added) (quoting Greschner, 802 F.2d at 376) (internal quotation marks omitted); United States v. Porter, 405 F.3d 1136, 1141-42 (10th Cir.2005) (concluding that there was no abuse of discretion in the district court's denial of the defendant's motion to substitute counsel because, inter alia, there was nothing in the record demonstrating that the attorney
This is particularly true where the charges in this case, at their essence, concerned general allegations of fraud, and did not, for instance, present the need to synthesize highly technical securities regulations. And, although the charges were premised on voluminous, finance-related discovery, Mr. Clark has failed to point to any problems with Mr. Smallwood's representation that would undermine the soundness of the district court's decision to deny his motion for substitute or additional counsel. For these reasons, the district court did not abuse its discretion in denying Mr. Clark's motion for appointment of substitute or additional counsel.
Finally, we reject as unpersuasive Mr. Clark's facile attempt to link the concept of a "complex" case under the Speedy Trial Act to the concept of an "extremely difficult" case contemplated by the CJA Guidelines. See CJA Guidelines § 230.53.20. The CJA Guidelines and the Speedy Trial Act serve wholly different purposes. Compare, e.g., id. § 110.10 (noting that the goal of the Defender Services program is to "ensure that the right to counsel guaranteed by the Sixth Amendment, the [CJA], and other congressional mandates is enforced on behalf of those who cannot afford to retain counsel and other necessary defense services"), with Speedy Trial Act of 1974 § 101, 18 U.S.C. § 3161 (suggesting that the Act was passed "so as to assure a speedy trial" in line with the defendant's Sixth Amendment right). In sum, for the reasons noted, we conclude that Mr. Clark's appointment-of-counsel challenge fails.
Mr. Clark asserts that the district court erred in refusing to allow him to stand trial alone. Principally, he objects to the district court's decision not to sever his trial from that of Mr. Gordon, his co-defendant. He reasons that the admission of inculpatory out-of-court statements by Mr. Gordon violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He also challenges the district court's decision on three other grounds. Specifically, Mr. Clark contends that the prejudicial effects of the district court's refusal not to allow him to stand trial alone were that (1) he was prevented from compelling Mr. Gordon to testify, (2) evidence that was relevant to the culpability of his co-defendants unfairly spilled over onto him, and (3) he was forced to stand trial with co-conspirators who were unavailable for cross-examination or confrontation. We conclude that the district court did not commit reversible error.
Mr. Clark argues that the government — through Mr. Lindberg's testimony — presented evidence that Mr. Gordon often referred to Mr. Clark as "heat-resistant," meaning that he was "somebody who would not buckle under the pressure of an SEC investigation." R., Vol. VIII, at 2974; see id. at 186. The admission of these statements at his joint trial, reasons Mr. Clark, violated his Sixth Amendment right of confrontation as explicated in Bruton.
"We review de novo the legal issue of whether the admission of the non-testifying codefendant's statements/confession in a joint trial violated the defendant's Sixth Amendment right to confrontation." United States v. Sarracino, 340 F.3d 1148, 1158-59 (10th Cir.2003) (quoting United States v. Verduzco-Martinez, 186 F.3d 1208, 1212 (10th Cir.1999)) (internal quotation marks omitted).
The Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with
Bruton applies "even if the jury is instructed to consider that confession only against the codefendant." Richardson v. Marsh, 481 U.S. 200, 201-02, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); see Dickerson v. United States, 530 U.S. 428, 458, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (Scalia, J., dissenting) (noting that Bruton "was based ... upon the self-evident proposition that the inability to cross-examine an available witness whose damaging out-of-court testimony is introduced violates the Confrontation Clause, combined with the conclusion that in these circumstances a mere jury instruction can never be relied upon to prevent the testimony from being damaging" (emphases added)).
We have cautioned that Bruton's rule is "a narrow one"; it applies only when the co-defendant's statement is "so inculpatory as to the defendant that the practical and human limitations of the jury system cannot be ignored." Sarracino, 340 F.3d at 1160 (quoting United States v. Rahseparian, 231 F.3d 1267, 1277 (10th Cir.2000)) (internal quotation marks omitted); see United States v. Nash, 482 F.3d 1209, 1218 (10th Cir.2007) ("[T]he rule announced in Bruton is a limited one."). However, Bruton provides the foundation for affirmative remedial measures — most notably, severance — upon a proper showing that a co-defendant's statement offered into evidence would inculpate the defendant. See Nash, 482 F.3d at 1217-18 (discussing the Bruton process). These measures are meant to avoid the extrinsic (i.e., collateral) damage to a defendant from the jury's undue consideration of a co-defendant's facially inculpatory statement — a factor that the jury would be highly unlikely to "disregard" and one that cannot be remedied by a curative instruction. See Bruton, 391 U.S. at 128-29, 88 S.Ct. 1620. When evidence is admitted in violation of Bruton, "we must reverse unless we can conclude beyond a reasonable doubt that the constitutional error was harmless." Sarracino, 340 F.3d at 1161 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
Since Bruton was decided, the Supreme Court's Confrontation Clause jurisprudence has evolved, beginning with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and extending through Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), to the Court's more recent Confrontation Clause decisions: specifically, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011); and Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). "In Crawford, the Supreme Court held that the Sixth Amendment precluded the admission of out-of-court statements that are testimonial, unless the witness is unavailable and the defendant
Like our sister circuits, we have recognized the need to interpret Bruton "consistent[ly] with the present state of Sixth Amendment law." Smalls, 605 F.3d at 768 n. 2; see, e.g., United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir.2010); United States v. Johnson, 581 F.3d 320, 325-26 (6th Cir.2009); United States v. Avila Vargas, 570 F.3d 1004, 1008-09 (8th Cir.2009).
Notably, Crawford made clear that the Confrontation Clause applies only if a statement is "testimonial" in nature, for "[o]nly statements of this sort cause the declarant to be a `witness' within the meaning of the Confrontation Clause." Davis, 547 U.S. at 821, 126 S.Ct. 2266 (citing Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Indeed, reflecting on the text and history of the Confrontation Clause, the Court in Crawford explained that out-of-court testimonial statements, or the "`bear[ing of] testimony,'" were the core "evil[s] at which the Confrontation Clause was directed." 541 U.S. at 50-51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)); see id. at 50, 124 S.Ct. 1354 (noting the Founders' concern with the "use of ex parte examinations as evidence against the accused"); see also Bullcoming, 131 S.Ct. at 2713 ("[F]idelity to the Confrontation Clause [does not] permit[] admission of [t]estimonial statements of witnesses absent from trial," absent a showing that "the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (fourth alteration in original) (quoting Crawford, 541 U.S. at 59, 124 S.Ct. 1354) (internal quotation marks omitted)).
Crawford indicates that the class of testimonial statements that fall within the protective ambit of the Confrontation Clause includes, but is not limited to, statements covered also by Bruton. See Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (listing as examples of testimonial statements "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions" (emphasis added) (quoting White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., concurring in part and concurring in judgment)) (internal quotation marks omitted)); see also Jones v. Basinger, 635 F.3d 1030, 1049 n. 6 (7th Cir.2011) ("The use of a non-testifying accomplice's confession ... in seventeenth
In Smalls, based upon our synthesis of Crawford, Davis, and our own Confrontation Clause precedent, we posited two possible definitions of a "testimonial" statement: (1) "a formal declaration made by the declarant that, when objectively considered, indicates the primary purpose for which the declaration was made was that of establishing or proving some fact potentially relevant to a criminal prosecution"; or (2) "[a] formal statement [such that] a reasonable person in the position of the declarant would objectively foresee that the primary purpose of the statement was for use in the investigation or prosecution of a crime." 605 F.3d at 778; cf. United States v. Solorio, 669 F.3d 943, 953 (9th Cir.2012) ("[S]tatements made out-of-court with a primary purpose other than possible prosecutorial use are nontestimonial."). We did not choose in Smalls between the two definitions because we found the statement at issue in Smalls to be nontestimonial "regardless of which of the foregoing definitions we apply." 605 F.3d at 778. We employ the same approach here and conclude that the statement at issue is not testimonial under either definition.
Mr. Clark contends that the evidence — through Mr. Lindberg's testimony — of Mr. Gordon's out-of-court statements referring to Mr. Clark as "heat-resistant" violates Bruton. However, because the statement is not testimonial, we disagree. The statement was made to Mr. Lindberg, a co-conspirator, in furtherance of the underlying conspiracy. In particular, the group wanted to install Mr. Clark as president of Global Beverage so that, if necessary, he could withstand the psychological pressure of a federal investigation and not disclose the conspirators' illegal endeavors. Mr. Gordon's statements were not made to law enforcement investigators, nor could a reasonable person in Mr. Gordon's position have objectively foreseen that the primary purpose for his statements was for use in the investigation or prosecution of the pump-and-dump conspiracy. See Bryant, 131 S.Ct. at 1154. Thus, we conclude that they fall outside the protective ambit of the Confrontation Clause and, by extension, Bruton.
In considering a Confrontation Clause challenge — predicated on Crawford and Bruton — to the admission of two statements made in the context of a narcotics-conspiracy prosecution, we recently reached a very similar conclusion. Specifically, in Patterson, we succinctly reasoned as follows: "The admission of these two statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial." 713 F.3d at 1247. Likewise, our decision in United States v. Townley, 472 F.3d 1267 (10th Cir.2007), bolsters our holding here. There, following Crawford and Davis, we determined that certain out-of-court co-conspirator statements were not testimonial because "[n]one of [them] was made at a hearing or trial or as a result of police interrogation, and no reasonable person in the position of the[] declarants would have objectively foreseen that these statements would be used in the investigation or prosecution of the[] conspiracy." Townley, 472 F.3d at 1275 (citation omitted); see
Mr. Clark makes three remaining arguments concerning the district court's failure to allow him to stand trial alone. Mr. Clark argues that the prejudicial effect of this decision was that (1) he was prevented from compelling Mr. Gordon to testify, (2) evidence that was relevant to the culpability of his co-defendants unfairly spilled over onto him, and (3) he was forced to stand trial with co-conspirators who were unavailable for cross-examination or confrontation. We reject each argument and conclude that the district court did not abuse its discretion in denying severance.
There are two significant provisions that frequently are implicated by severance claims. The first is Federal Rule of Criminal Procedure Rule 8(b), which "permits an indictment to charge two or more defendants `if 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.'" United States v. Pursley, 577 F.3d 1204, 1215 (10th Cir.2009) (quoting Fed.R.Crim.P. 8(b)); cf. Fed.R.Crim.P. 13 ("The court may order that separate cases be tried together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information."). Rule 8(b) embodies a "preference in the federal system for joint trials of defendants who are indicted together," Pursley, 577 F.3d at 1215 (quoting Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)) (internal quotation marks omitted); see Marsh, 481 U.S. at 209, 107 S.Ct. 1702 ("Joint trials play a vital role in the criminal justice system...."), and it is broadly construed so as "to enhance the efficiency of the judicial system," United States v. Morales, 108 F.3d 1213, 1219 (10th Cir.1997). Moreover, we indulge a presumption that co-conspirators in a conspiracy trial should be tried together. See Pursley, 577 F.3d at 1215; see also United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir.2005) ("[I]n a
The second provision is Federal Rule of Criminal Procedure 14(a). It provides that "a court `may' sever the trials of more than one defendant if joinder `appears to prejudice a defendant or the government.'" Pursley, 577 F.3d at 1215 (quoting Fed.R.Crim.P. 14(a)). Prejudice for Rule 14(a) purposes means "actual prejudice." United States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir.2009). Thus, "a district court should grant a severance under Rule 14 only if there is 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." Zafiro, 506 U.S. at 539, 113 S.Ct. 933. That risk is present when the jury considers evidence against a defendant that is admissible only against a co-defendant, and is increased when multiple defendants are tried together "in a complex case" and "have markedly different degrees of culpability." Sarracino, 340 F.3d at 1165 (quoting Zafiro, 506 U.S. at 539, 113 S.Ct. 933) (internal quotation marks omitted). However, "neither `a mere allegation that defendant would have a better chance of acquittal in a separate trial' nor an argument that evidence against one defendant would have a `spillover effect' on another defendant demonstrates prejudice." United States v. Jones, 530 F.3d 1292, 1303 (10th Cir.2008) (quoting United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005)).
The district court is the primary referee on severance claims, for we, as an appellate court, have only a distant view of the ring. "Rule 14 leaves the determination of risk of prejudice and any remedy for such prejudice to the sound discretion of the district court," Morales, 108 F.3d at 1220, and "[a] defendant seeking to vacate a conviction based upon the denial of a motion to sever faces a steep challenge," Pursley, 577 F.3d at 1215; see United States v. Wardell, 591 F.3d 1279, 1299 (10th Cir.2009). "We review the district court's denial of a motion to sever for an abuse of discretion." Pursley, 577 F.3d at 1215 (quoting United States v. Hall, 473 F.3d 1295, 1302 (10th Cir.2007)) (internal quotation marks omitted).
Mr. Clark asserts that his inability to compel Mr. Gordon's testimony at their joint trial violated his confrontation rights. He argues that, without Mr. Gordon as a witness, he "did not have the opportunity to rebut [Mr.] Gordon's otherwise hearsay statement about [Mr.] Clark being `heat resistant,'" which was "the most significant statement" used against him. Aplt. Opening Br. at 19. He also states that the joint trial "greatly affected" his own decision not to testify in his defense. Id.
In this context, to determine whether the district court abused its discretion in denying a severance motion, we look to a nonexhaustive list of factors dubbed the "McConnell factors." See Pursley, 577 F.3d at 1215 (internal quotation marks omitted). These are:
Id. at 1215-16 (alteration in original) (quoting United States v. McConnell, 749 F.2d 1441, 1445 (10th Cir.1984)) (internal quotation marks omitted).
Under this rubric, Mr. Clark offers nothing that would permit us to meaningfully evaluate the district court's severance decision. For instance, he makes no argument concerning the likelihood that Mr. Gordon would have agreed to testify at Mr. Clark's separate trial. Nor does he explain what the significance or exculpatory value of that testimony would have been, or articulate how he was prejudiced by the absence of such testimony.
Mr. Clark provides only the conclusory, unilluminating assertions that he could have "rebut[ted]" Mr. Gordon's reference to him as being "heat resistant" and that the joint trial "greatly affected" his own decision not to testify. Aplt. Opening Br. at 19 (internal quotation marks omitted). As to the latter contention, he does not explain whether he would have actually testified, or as to what matters his testimony would have been relevant. Cf. United States v. Lindsey, 782 F.2d 116, 118 (8th Cir.1986) (concluding that the defendant failed to show that he was prejudiced by the district court's failure to sever his counts of conviction, even though he argued that he would have testified at a separate trial, because he failed to make "a convincing showing that he ha[d] both important testimony to give concerning one count and a strong need to refrain from testifying on the other").
Furthermore, Mr. Clark has pointed to no basis for a conclusion that Mr. Gordon's admitted comments would have been subject to an effective counter-attack in a separate trial. "[S]peculation is insufficient to require severance." Pursley, 577 F.3d at 1216; see Hall, 473 F.3d at 1302 (holding that the district court did not abuse its discretion in denying a motion for severance where the defendant had not shown that the exculpatory value of a co-defendant's testimony in a separate trial could have made a material difference); United States v. Powell, 982 F.2d 1422, 1433 (10th Cir.1992) (concluding that there was no abuse of discretion in the district court's denial of severance even where a co-defendant signed an affidavit indicating that he would testify because the "testimony would totally lack credibility" in light of "[t]he overwhelming evidence at trial" against the co-defendant that would impeach him). With effectively nothing to go on from Mr. Clark, and in light of our preference for joint co-conspirator trials, see Pursley, 577 F.3d at 1215, we conclude that the district court did not abuse its discretion in denying severance on this ground.
Mr. Clark further argues that evidence introduced against his co-defendants had a spillover effect that prejudiced his defense. He points in particular to Mr. Lindberg's testimony that persistently referred to "the group" but "barely mentioned" Mr. Clark. Aplt. Opening Br. at 15 (internal quotation marks omitted). However, Mr. Lindberg specifically described Mr. Clark's involvement in the conspiracy at several points during his testimony. See, e.g., R., Vol. VIII, at 174-75 (noting that Mr. Clark was "one of those people" that "kept money" when the conspirators started dumping Deep Rock stock); id. at 186 (noting that Mr. Gordon recommended installing Mr. Clark as president of the company that was ultimately called Global Beverage because "he's been a good soldier
Finally, although Mr. Gordon was charged with three additional counts in the twenty-four count indictment, the facts relating to the separate counts did not render null the jury's ability "to segregate the evidence associated with each defendant's individual actions." Zapata, 546 F.3d at 1191. The district court instructed the jury to segregate out evidence that was not directed at Mr. Clark, see R., Vol. VIII, at 2516-17 (Jury Instructions, given Apr. 29, 2010), and Mr. Clark has not articulated any reason why the jury was unable to follow the instructions in this respect, see Zapata, 546 F.3d at 1191-92 (suggesting that the district court's instruction limited the prejudice of any "spillover" to a defendant that might result from counts concerning his co-defendants); see also Caldwell, 560 F.3d at 1213 ("We presume that the jury obey[s] [its] instructions.").
We thus reject Mr. Clark's claim of prejudicial spillover and conclude that the district court did not abuse its discretion in denying severance on this ground.
Finally, Mr. Clark claims that conducting the trial with absent co-defendants — specifically, Dean Sheptycki, the creator of much of the promotional material, and Josh Lankford — violated his rights. Under indictment for the pump-and-dump conspiracy, Mr. Sheptycki was apprehended in the Bahamas, but the Bahamian government declined to honor the government's extradition request, so he was not present for the trial. Also indicted, co-conspirator Lankford's whereabouts were unknown at the time of trial and the government classified him as a fugitive. Neither Mr. Sheptycki nor Mr. Lankford was actually tried by the government in absentia in the case, but there was considerable evidence detailing their roles in the charged conspiracy. Mr. Clark complains that his legal rights were infringed because he was "unable to cross-examine or otherwise confront" Mr. Lankford and Mr. Sheptycki. Aplt. Opening Br. at 18. We reject this claim.
Standing alone, Mr. Clark's assertions do not satisfy his "`heavy burden' of showing `real prejudice.'" Wardell, 591 F.3d at 1299 (quoting McConnell, 749 F.2d at 1444). He does not explain how the absence of Messrs. Sheptycki and Lankford "compromise[d] a specific trial right" of his — including his right of cross-examination under the Confrontation Clause
Simply pointing out that certain co-defendants were absent does not suffice. Cf. United States v. Edmonson, 962 F.2d 1535, 1545 (10th Cir.1992) (holding that absence of co-defendant tried in absentia "did not have a significant adverse impact upon the case" and thus "it would obviously [have been] unnecessary for the trial judge to grant a severance"); cf. also United States v. Tarango, 396 F.3d 666, 674 (5th Cir.2005) ("[A defendant is] not prejudiced simply by the fact that her co-defendant [i]s being tried in absentia."); Murr v. United States, 200 F.3d 895, 904 (6th Cir.2000) ("Petitioner has not made the required showing of factually specific and compelling prejudice as a result of the joint trial. He offers absolutely no evidence in support of his claim that [the co-defendant's] absence constituted extreme prejudice to him in that the jury assumed that [the co-defendant's] absence indicated that Petitioner was guilty.").
Mr. Clark claims that the district court erred in refusing to dismiss the indictment pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, primarily because the court's March 10, 2009, ends-of-justice continuance "was inadequate." Aplt. Opening Br. at 23.
Roughly two weeks after the indictment was unsealed, the government filed an unopposed motion to declare the case "complex" under 18 U.S.C. § 3161(h) in light of the massive pending discovery and complex legal issues presented. On March 10, the district court granted the motion, concluding that the "ends of justice" outweighed the public's interest in a speedy trial. More specifically, noting that it had considered the statutory factors and our precedent, the court stated:
R., Vol. I, at 121 (Order Granting Unopposed Mot. of the United States to Declare This Case a Complex Matter, filed Mar. 10, 2009). In that order, it struck the initial trial date. Then, through entry of a minute order one week later, the court set the trial date for January 19, 2010.
After reassignment, the new district judge (i.e., Judge Payne) struck the January 19 trial date. On March 17, 2010, Mr. Clark and Mr. Gordon filed a joint motion to dismiss the indictment under the Speedy Trial Act, challenging, inter alia, the validity of the court's ends-of-justice continuance. The district court denied the motion, and the trial began on April 5, 2010.
"The Speedy Trial Act ... requires that a criminal defendant's trial commence within 70 days after he is charged or makes an initial appearance, whichever is later...."
We review the district court's decision to grant a continuance in the "ends of justice" for an abuse of discretion. See United States v. Toombs, 574 F.3d 1262, 1268 (10th Cir.2009) ("We apply an abuse of discretion standard to a district court's decision to grant an ends-of-justice continuance." (quoting United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir. 1998)) (internal quotation marks omitted)). "At the same time, we review the district court's compliance with the Act de novo and its findings of fact for clear error." Loughrin, 710 F.3d at 1117; see Toombs, 574 F.3d at 1268 (noting that we "review[]
Mr. Clark narrowly frames his argument, challenging the district court's March 10 ends-of-justice order, claiming that the order did not "set[] forth and justify[] any specific time period for the continuance," Aplt. Opening Br. at 22-23, and was otherwise conclusory and lacking in the detail required by the Act. We are not persuaded by Mr. Clark's arguments.
First, Mr. Clark does not explain why the district court's failure to specify immediately a trial date when it entered the March 10 ends-of-justice continuance order constituted legal error, and we discern no foundation for that notion. Indeed, we have expressly held that "while it is preferable to set a specific ending date for a continuance, ... an open-ended continuance for a reasonable time period is permissible." United States v. Spring, 80 F.3d 1450, 1458 (10th Cir.1996); see, e.g., United States v. Santiago-Becerril, 130 F.3d 11, 18 (1st Cir.1997) ("Open-ended continuances are not prohibited per se."). In assessing whether an open-ended continuance was terminated (i.e., delimited by a definite end date) in a reasonable time frame, courts naturally look beyond the continuance order itself to other documents in the record associated with it. See Spring, 80 F.3d at 1458; see also United States v. Ross, 703 F.3d 856, 877 (6th Cir.2012) ("[T]he latter order's reference to `the new trial date' was not an `open-ended period' but was merely a reference to the new, June 24, 2008 trial date specified in the former order. These orders satisfy the statutory requirements.").
To the extent that the March 10 order created an open-ended continuance, a survey of the record reveals that the district court supplied a concrete end date (i.e., a trial date of January 19) in its minute order with virtually no delay — viz., one week later. This week was clearly a reasonable period. See Spring, 80 F.3d at 1458 ("The new trial date was set, thereby providing a specific ending date to the continuance, eleven days later.... Given the circumstances of this case, the open-ended continuance initially granted was reasonable in length.").
Furthermore, focusing on Mr. Clark's challenge to the adequacy of the district court's findings, we reject Mr. Clark's assertion that they were conclusory and insufficient under our case law. When analyzing the terms of the same order in our Gordon decision, we concluded that the district court properly struck the ends-of-justice balance to justify the continuance of the trial date to January 19, 2010, and that conclusion is controlling here. See 710 F.3d at 1158-59.
In sum, we find no merit in Mr. Clark's speedy trial challenges and reject them.
For the foregoing reasons, we
R., Vol. I, at 55-56 (Indictment, filed Jan. 15, 2009).
Gordon, 710 F.3d at 1136 n. 14. In contrast, as we further noted in Gordon:
Id. at 1135 n. 13 (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 625-26, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989), and Jarvis, 499 F.3d at 1203) (internal quotation marks omitted).
Significantly, our independent examination of the district court's documents suggests that the magistrate judge remarkably did manage to divine in Mr. Clark's filings a request for an evidentiary hearing "apparently to examine the Government's conduct in this and other cases relating to pretrial restraints on a criminal defendant's assets," id, Vol. I, at 347 (Order, dated Dec. 9, 2009), and denied relief. However, Mr. Clark is not well-postured on appeal to avail himself of the benefits of the magistrate judge's impressive industriousness. Not only does Mr. Clark not discuss the magistrate judge's order in connection with his due process/Jones challenge, he also fails (in his opening brief or otherwise) to fashion an argument for why this challenge should be deemed preserved for review, based upon the magistrate judge's decision to rule on his purported hearing request. And we certainly will not attempt to craft an argument of this sort for him. Accordingly, any such preservation argument is waived. See, e.g., United States v. Bader, 678 F.3d 858, 894 (10th Cir.2012) (noting that defendant "devotes only a single sentence to [his] argument" in his opening brief and "[t]hat is not enough"). Furthermore, even if Mr. Clark had referenced the magistrate judge's order and attempted before us to make a preservation argument based upon it with respect to his due process/Jones challenge, he would have another problem: he did not file an objection to the magistrate judge's denial of his purported request for a hearing. See R., Vol. I, at 348-51 (Objection to Magistrate's Order, dated Dec. 15, 2009) (failing to address the hearing ruling). Therefore, under our firm waiver rule, appellate review of the hearing denial would be barred. See, e.g., Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.2005); In re Carpenter, 205 F.3d 1249, 1253 (10th Cir.2000). When all is said and done, then, the best that Mr. Clark could ever hope for is plain-error review of his due process claim — that is, his claim predicated on the district court's purported failure to give him the opportunity to have a Jones hearing regarding the government's imposition of a caveat. Going to great lengths to ensure that, to the extent reasonably feasible and consistent with the adversary process, Mr. Clark has his day in court, as noted infra, we afford him this best-case, plain-error scenario. Cf. Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir.2013) (noting that "the decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary" and proceeding to consider petitioner's argument "even though [it was] not obliged to do so" where "certain factors militate[d] in favor of considering [the argument at issue], but only under the demanding plain-error standard").
