FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         August 6, 2018

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-1306

AUSTIN RAY,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                         (D.C. No. 1:14-CR-00147-MSK-2)
                       _________________________________

Jason B. Wesoky, Darling Milligan Horowitz PC, Denver, Colorado, for Defendant-
Appellant.

Hetal J. Doshi, Assistant United States Attorney (Robert C. Troyer, Acting United States
Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.
                         _________________________________

Before HARTZ, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      Austin Ray appeals his jury convictions for one count of conspiracy to defraud

the United States, five counts of aiding in the preparation of a false tax return, and

two counts of submitting a false tax return. In challenging his convictions, Ray first

asserts that the government violated the Interstate Agreement on Detainers Act (IAD)
of 1970, 18 U.S.C. app. 2 § 2. But because the government never lodged a detainer

against Ray, the IAD didn’t apply and the district court didn’t err in denying Ray’s

motion to dismiss on this ground. Next, Ray alleges that the government engaged in

vindictive prosecution. Yet Ray establishes neither actual nor presumptive

vindictiveness, so this argument also fails. So too does his assertion that the district

court violated his rights under the Speedy Trial Act (STA) of 1974, 18 U.S.C.

§§ 3161–74; Ray waived the STA argument he advances on appeal by failing to raise

it below, and in any event, Ray’s STA clock never surpassed 70 days. Ray’s next

argument—that the government violated his due-process rights by destroying certain

evidence—is also flawed. The evidence at issue lacked any exculpatory value. And

even if the evidence were potentially useful to Ray’s defense, the government didn’t

destroy it in bad faith. Finally, we reject Ray’s assertion that the district court

constructively amended the indictment; the district court narrowed, rather than

broadened, the charges against Ray. Accordingly, we affirm.

                                      Background

       In March 2006, Ray and his wife opened a tax-preparation firm, Cheapertaxes

LLC. To expand their business, Ray and his wife relied on word-of-mouth referrals

from clients who received large tax refunds. Over the next four years, they greatly

exaggerated their clients’ itemized deductions, including Schedule A deductions like

job expenses and charitable contributions, so that their clients would receive larger

tax refunds. Thus, Ray and his wife knowingly prepared and submitted many false

tax returns to the Internal Revenue Service (IRS).

                                             2
       In April 2014—while Ray was living in a residential facility and participating

in Colorado’s community-corrections program as the result of unrelated offenses—

the government arrested him on the federal tax-fraud charges central to this appeal.

The government also charged Ray’s wife with tax fraud. She pleaded guilty, but Ray

rejected the government’s plea offer. He represented himself at trial, and the jury

convicted him on all counts. The district court imposed a 120-month sentence. Ray

appeals, raising five issues.

                                         Analysis

I.     The Interstate Agreement on Detainers Act

       Ray first argues that the government violated the IAD when it twice

transported him to and from Colorado before his federal trial concluded. The district

court denied Ray’s motion to dismiss based on the IAD. It found that the IAD didn’t

apply because the government never lodged a detainer against Ray with Colorado to

begin with, and therefore the government could not have violated it. “We review a

decision on a motion to dismiss under the IAD for abuse of discretion. As always, any

legal questions implicated by that conclusion are reviewed de novo and any factual

findings for clear error.” United States v. Gouse, 

, 42 (1st Cir. 2015) (citation

omitted).

       No one disputes that once a “[r]eceiving [s]tate” lodges a detainer for a

prisoner who is in the custody of a “[s]ending [s]tate,” the IAD governs the transfer




                                             3
of that prisoner.1 § 2, Art. II. Instead, the parties disagree about (1) what constitutes a

detainer and (2) whether the government in this case ever lodged a detainer with

Colorado.

       Generally speaking, a detainer is “a legal order that requires a [s]tate in which

an individual is currently imprisoned to hold that individual when he has finished

serving his sentence so that he may be tried by a different [s]tate for a different

crime.” Alabama v. Bozeman, 

, 148 (2001); see also United States v.

Mauro, 

, 359 (1978) (describing detainer as “a notification filed with the

institution in which a prisoner is serving a sentence, advising that he is wanted to

face pending criminal charges in another jurisdiction” (quoting H.R. Rep. No. 91-

1018, at 2 (1970); S. Rep. No. 91-1356, at 2 (1970))).

       Ray asserts the district court erred in ruling that the federal government never

lodged a detainer for him with Colorado. First, he maintains that all arrests constitute

detainers under the IAD. In support, Ray points out that (1) the IAD fails to define

detainer and (2) an arrest fits within the definitions that other sources, including

Black’s Law Dictionary, provide for that term.

       It’s true that the IAD doesn’t define detainer. But we need not speculate about

whether an arrest can arguably fit within general legal definitions of that term. That’s

because we are bound by the pronouncements of the Supreme Court, and the


       1
       For purposes of the IAD, the receiving state is where a subsequent, untried
indictment has been filed against a prisoner. § 2, Art. II(c). And the sending state is
where a prisoner is currently serving a sentence. 

II(b). The federal
government constitutes a “[s]tate.” 

II(a).
                                             4
Supreme Court has defined detainer on multiple occasions to mean something

specific in the context of the IAD. See 

; 

(defining detainer as “a notification filed with the institution in which a prisoner

is serving a sentence” (quoting H.R. Rep. No. 91-1018, at 2 (1970); S. Rep. No. 91-

1356, at 2 (1970))). Because an arrest isn’t “a notification filed with the institution in

which a prisoner is serving a sentence,” it doesn’t fit within the Supreme Court’s

binding definition of detainer. 

Rep. No. 91-1018, at 2 (1970); S.

Rep. No. 91-1356, at 2 (1970)); see also 

.

      Next, Ray appears to broadly suggest that, by the process of elimination, his

arrest must necessarily have been a detainer. According to Ray, the government can

only obtain custody of a defendant who is serving a sentence in another jurisdiction

via (1) a writ of habeas corpus ad prosequendum,2 or (2) a detainer. And because the

government indisputably didn’t file a writ of habeas corpus ad prosequendum, Ray

concludes his arrest was necessarily a detainer. Yet Ray fails to develop or provide

any authority for his suggestion that one jurisdiction can obtain custody of a

defendant who is serving a sentence in another jurisdiction only through (1) a writ of

habeas corpus ad prosequendum or (2) a detainer. Thus, he’s waived this argument.

See Fed. R. App. P. 28(a)(8)(A) (stating that appellant’s opening brief must contain

“appellant’s contentions and the reasons for them, with citations to the authorities . . .

on which the appellant relies”); Bronson v. Swensen, 

, 1104 (10th Cir.

      2
         A writ of habeas corpus ad prosequendum is an order issued by a federal
district court requiring the state to produce a state prisoner for trial on federal
criminal charges. 

–58. It is not a detainer. See 

                                            5
2007) (holding that arguments inadequately presented in appellant’s opening brief are

waived). In any event, as we’ve discussed, an arrest doesn’t fit within the Supreme

Court’s definition of detainer. See 

; 

. As such, even if we considered Ray’s waived argument, we would reject it.3

      But our conclusion that Ray’s arrest did not constitute a detainer doesn’t end

our inquiry. Ray alternatively contends that even if his arrest didn’t constitute a

detainer, the government nevertheless lodged a detainer with Colorado through other

means. In support, Ray points to the following facts.

      The day after Ray’s federal arrest, Gary Pacheco—the parole liaison for

Colorado’s community-corrections program—completed a form used to explain the

reasons an offender is in custody and submitted it to the Colorado Department of

Corrections. On that form, Pacheco wrote that the pending federal charges rendered

Ray ineligible for Colorado’s community-corrections program. Further, Pacheco

twice used some iteration of the words “felony detainer.” First, under the “[s]pecial

[i]nstructions” heading, he wrote that Ray should be “place[d] in [D]enver county jail

for r[e]gress to DOC, felony detainer feds.” R. vol. 2, 367. Next, he wrote that the

“justification” for this action was “felony charges from [f]ederal government

detainer, no longer eligible for community[-]corrections, related to tax theft.” 

note that when the government arrested Ray, he wasn’t incarcerated in a
Colorado state prison. Instead, he was living in a residential facility and participating
in Colorado’s community-corrections program. But Ray doesn’t argue that this aspect
of his arrest has any bearing on whether his arrest constituted a detainer.
Accordingly, we decline to consider that possibility. See United States v. Harrell, 

, 912 n.2 (10th Cir. 2011) (treating as waived and declining to consider
argument that appellant failed to advance on appeal).
                                            6
       Ray suggests that Pacheco’s repeated use of the term detainer indicates that the

government must have lodged a detainer with Colorado. We disagree. Pacheco

completed this form based on his telephone conversation with IRS agent Arlita

Moon. And Pacheco testified that Moon neither uttered the word “detainer” during

the call nor instructed him to hold Ray. In fact, Pacheco admitted that using the

phrase “felony detainer” on the form “was probably a bad choice of word[s] on [his]

part.” R. vol. 6, 1306. As such, we reject Ray’s contention that the mere appearance

of the word “detainer” on the form means that the government in fact lodged a

detainer against Ray. See United States v. Reed, 

, 711 (9th Cir. 1980)

(finding that district court “properly concluded” that notation “Hold for U.S.

Marshals” wasn’t detainer because “it was made by a state officer, without the

direction of a federal agent or officer”).

       Relying on United States v. Trammel, 

(7th Cir. 1987), Ray

alternatively suggests that that the phone call between Moon and Pacheco itself

constituted a detainer. But Trammel supports the opposite conclusion. There, a

United States Marshal telephoned a local jail to provide advance notification that

federal authorities would appear with a writ to pick up the defendant for an

appearance in federal court. 

. The sheriff’s deputy who took

the call placed a memo in jail records that the marshal would pick up the defendant

and would “bring [the] writ along.” 

defendant was picked up and

arraigned, he was returned to the jail. 

marshal later mailed a detainer to



                                             7
the jail to ensure the defendant would be returned to federal custody upon expiration

of his sentence. 

      The defendant sought dismissal of the federal charges against him, arguing

that the marshal’s telephone call to the deputy was a detainer because (1) “it was a

‘notification’ to a state ‘institution’ that [the defendant] was ‘wanted to face pending

criminal charges in another jurisdiction’”; and (2) the deputy’s notation in jail

records constituted the filing of a detainer. 

Thus, he contended, authorities

violated the IAD when they returned him to state custody without first trying him on

federal charges. 

the defendant’s argument, the Seventh Circuit in Trammel

concluded that it couldn’t label the telephone call and notation a detainer “without

running afoul of the Supreme Court’s decision in Mauro.” 

Notably, in

refusing to classify the phone call as a detainer, the Seventh Circuit reasoned that

doing so “would serve only to inhibit informal courtesy notifications of a kind that save

time and trouble on both ends, expedite the procedures[,] and contribute in small but

meaningful ways to the intergovernmental comity that is among the expressed purposes

of the [IAD] itself.” 

Thus, nothing about the Seventh Circuit’s holding in

Trammel supports Ray’s assertion that Moon’s courtesy phone call mentioning Ray’s

arrest on federal charges transformed the call into a detainer under the IAD.

      In short, we conclude that the district court did not abuse its discretion in

denying Ray’s motion to dismiss based on the IAD. Because the government never

lodged a detainer with Colorado, the IAD didn’t apply. And because the IAD didn’t

                                            8
apply, the government could not have violated it when it transported Ray to and from

Colorado.

II.   Vindictive Prosecution

      Ray next argues that the government’s decision to add two counts to a

superseding indictment—allegedly in retaliation for his refusal to enter a plea—

amounts to vindictive prosecution. He argued as much below, but the district court

disagreed and concluded that Ray failed to present facts demonstrating prosecutorial

vindictiveness. We review this conclusion de novo. United States v. Wall, 

, 1448 (10th Cir. 1994).

      Vindictive prosecution occurs when the government retaliates against a

defendant for exercising his or her constitutional or statutory rights, such as the right

to file an appeal or the right to present a defense. See Bordenkircher v. Hayes, 

, 362–63 (1978). To succeed on a claim of prosecutorial vindictiveness, the

defendant must show either actual or presumptive vindictiveness. United States v.

Creighton, 

, 1162 (10th Cir. 2017). Actual vindictiveness occurs when

the government’s decision to prosecute “was ‘a direct and unjustifiable penalty for

the exercise of a procedural right’ by the defendant.” United States v. Raymer, 

, 1041 (10th Cir. 1991) (quoting United States v. Goodwin, 

,

384 n.19 (1982)). To establish presumptive vindictiveness, on the other hand, the

defendant must show that “as a practical matter, there is a realistic or reasonable

likelihood of prosecutorial conduct that would not have occurred but for hostility or



                                            9
punitive animus towards the defendant because he exercised his specific legal right.”

(quoting 

).

       Critically, courts tend to find presumptive vindictiveness only in post-trial

situations, such as “when a defendant successfully attacks his first conviction and

then receives a harsher sentence on retrial, or when ‘the “prosecutor clearly has a

considerable stake in discouraging convicted misdemeanants from appealing”’ by

charging a successful appellant with a felony covering the same facts.” 

States v. Miller, 

, 633 (10th Cir. 1991)). Yet the Supreme Court

has declined to credit these presumptions in the pretrial setting. See 

the Supreme Court nor the Tenth Circuit has ever” found presumptive

vindictiveness in a pretrial setting. 

.

       Here, Ray claims prosecutorial vindictiveness in the pretrial setting. Specifically,

he argues that after he declined to accept a plea offer, the government retaliated against

him by filing a superseding indictment that added two additional counts to the original

indictment. Ray doesn’t specify whether he contends these circumstances demonstrate

actual or presumptive vindictiveness. But because he provides no evidence of actual

vindictiveness—and because we have found none—we will assume that Ray alleges

presumptive vindictiveness. In support of this allegation, Ray asserts that the

government (1) could have included the two new counts in the original indictment

but failed to do so, (2) declined to add those counts against his wife who, unlike Ray,

agreed to enter a guilty plea, and (3) charged those counts only after Ray filed several

pretrial motions and rejected a plea offer.

                                              10
       But these three facts, even taken together, do not establish presumptive

vindictiveness. First, as noted above, Ray’s allegations arise from a pretrial situation,

where we’ve never before found presumptive vindictiveness. See 

. Second, the facts that Ray alleges don’t convince us that this is the case in

which to do so. Adding new counts to an indictment typically falls well within the

bounds of prosecutorial discretion, at least where there exists probable cause to

support those counts. See 

(“[S]o long as the prosecutor has

probable cause to believe that the accused committed an offense defined by statute, the

decision whether or not to prosecute, and what charge to file or bring before a grand jury,

generally rests entirely in [the prosecutor’s] discretion.”).

       This general rule applies where, as here, a prosecutor adds counts after a defendant

rejects a plea offer. See 

(“An initial indictment—from which

the prosecutor embarks on a course of plea negotiation—does not necessarily define the

extent of the legitimate interest in prosecution.”). And it also applies where, as here, the

prosecutor (1) adds counts against a defendant who rejects a plea offer but (2) doesn’t

add counts against a codefendant who accepts one. See 

discretion

to “forgo legitimate charges”). Thus, we decline to presume that the prosecutor

vindictively added the new counts to retaliate against Ray for refusing to enter a plea.

And we likewise decline to presume that the prosecutor vindictively added the new

counts to retaliate against him for filing certain pretrial motions. See 

(cautioning that it’s “unrealistic to assume that a prosecutor’s . . . response to such

motions is to seek to penalize and to deter”).

                                              11
       Because Ray fails to show a realistic likelihood of vindictiveness that gives rise to

a presumption of vindictiveness, the district court did not err in denying Ray’s motion to

dismiss for vindictive prosecution.

III.   The Speedy Trial Act

       Next, Ray contends the district court violated his rights under the STA. We

generally “review de novo the district court’s compliance with the [STA]’s legal

requirements” and review its factual findings for clear error. United States v.

Thompson, 

, 1131 (10th Cir. 2008). To the extent Ray’s argument turns

on his assertion that the district court misinterpreted a statement that Ray made at an

evidentiary hearing, we review that portion of Ray’s argument for abuse of

discretion. Cf. Barnett v. Hargett, 

, 1133 (10th Cir. 1999) (explaining

that “sorting th[r]ough pro se pleadings is difficult at best” and that we typically

don’t “interfere with the district court’s” interpretation of them).

       Under the STA, a criminal trial must commence within 70 days from the

indictment’s filing or the defendant’s initial appearance in court, whichever date

occurs later. § 3161(c)(1). But several periods of time are excluded from the 70-day

requirement. For example, as relevant to Ray’s arguments here, any “delay[s]

resulting from any pretrial motion” don’t count toward the 70 days. § 3161(h)(1)(D).

Thus, the 70-day clock is tolled from the day a litigant files a pretrial motion until the

day the court resolves it. 

either party requests a continuance and

the district court determines that such a continuance would serve “the ends of



                                             12
justice,” then any delay resulting from that continuance doesn’t count against the 70

days either. § 3161(h)(7).

       Further, and critical to this case, a defendant’s pretrial motion to dismiss under

the STA must include the specific STA objection that he or she raises on appeal;

otherwise that objection is waived. See United States v. Loughrin, 

,

1120–21 (10th Cir. 2013) (finding that defendant waived specific objection he

advanced on appeal by failing to include it in pretrial motion to dismiss based on

STA), aff’d on other grounds, 

(2014); 

(interpreting

§ 3162(a)(2) “to mean that we may not conduct any review of [STA] arguments

unraised below, not even for plain error”).

       Here, the crux of Ray’s STA claim is that the district court misinterpreted

Ray’s statements at an October 26, 2015 evidentiary hearing. During the hearing, Ray

stated, “[T]here is a lot of stuff, a lot of discovery that was ordered that I just never

received.” R. vol. 6, 1338. After the hearing, the district court issued a minute order

interpreting Ray’s comment as an oral motion for discovery. That characterization

effectively tolled the speedy-trial clock until the district court disposed of the motion

on November 19. See § 3161(h)(1)(D).

       Yet Ray didn’t file an objection to the minute order. Nor did he object when

the district court disposed of the oral discovery motion. And in subsequent pretrial

motions and hearings, Ray never addressed the minute order. Most critically, in his

pretrial motion to dismiss based on the STA, he failed to challenge the district court’s

characterization of his statement as a discovery motion that tolled the speedy-trial

                                            13
clock. Nevertheless, Ray now maintains that the district court violated his rights

under the STA because it incorrectly interpreted his comment at the October 26

hearing as an oral motion for discovery that tolled the speedy-trial clock. And he

argues that in the absence of that allegedly erroneous interpretation, more than 70

days elapsed on his speedy-trial clock.

      We conclude that Ray waived this argument by failing to make it in his pretrial

motion to dismiss based on the STA. True, he raised this objection in a post-trial

motion for relief, which he filed nearly six months after the district court issued the

minute order and four months after the trial ended. But that doesn’t change the fact

that Ray didn’t address the minute order in his pretrial motion to dismiss. Thus, we

find this argument waived. See 

–21.

      Alternatively, even if Ray had not waived this this argument, we would reject

it on the merits. That’s because even if we assume that the district court wrongly

characterized Ray’s statement as a discovery motion that tolled the speedy-trial

clock, Ray’s speedy-trial clock never surpassed 70 days.

      Initially, in May 2014, five days elapsed on the clock before Ray’s pretrial

motions and the district court’s ends-of-justice continuances began to toll it. See

§ 3161(h)(1)(D), (7). But when the government filed a superseding indictment on

December 2, 2014, the speedy-trial clock reset to zero, wiping out those five days.4


      4
         In a footnote in his opening brief, Ray insists that the superseding indictment
didn’t reset his speedy-trial clock. But arguments made in a cursory manner, such as
in a footnote, are waived. See United States v. Hardman, 

, 1131 (10th
Cir. 2002). And even if we agreed to address this waived argument on the merits, we
                                           14
Then, again due to pretrial motions and ends-of-justice continuances, no time elapsed

on Ray’s speedy-trial clock from the date the government filed its superseding

indictment until the October 26, 2015 evidentiary hearing. See 

accept Ray’s waived argument that he did not make a discovery motion

at that October 26 hearing, then his speedy-trial clock started ticking on October 27.

He tolled the clock again eight days later when he filed a pretrial motion for

reconsideration. See 

19, the district court disposed of Ray’s

reconsideration motion, so his clock resumed ticking on November 20. See 

commenced 60 days later on January 19, 2016. Accordingly, after including the

eight days from October 27 to November 4, 2015, a total of 68 days elapsed on Ray’s


would reject it. “As a general rule, new [STA] periods begin to run with respect to an
information or indictment adding a new charge not required to be brought in the
original indictment.” 

. But “when the later charge is merely
a part of or only ‘gilds’ the initial charge, the subsequent charge is subject to the
same Speedy Trial Act limitations imposed on the earlier indictment.” 

States v. Nixon, 

, 309 (5th Cir. 1981)).

       Here, the original indictment alleged that Ray conspired to prepare false tax
returns for others and aided and abetted in the preparation of false tax returns for
others. The superseding indictment, however, charged Ray with preparing his own
false tax returns. And fraudulently preparing one’s own personal tax returns is legally
and factually distinct from preparing fraudulent tax returns for others. Compare 18
U.S.C. § 371 (prohibiting conspiracy to defraud United States), and 26 U.S.C.
§ 7206(2) (prohibiting aiding and abetting fraud), with § 7206(1) (prohibiting making
false declaration under penalties of perjury). Accordingly, the charges brought in the
superseding indictment didn’t simply “gild[]” the charges in the original indictment;
instead, they constituted “new charge[s] not required to be brought in the original
indictment.” 

(quoting 

); see also
United States v. Olivo, 

, 1062 (10th Cir. 1995) (ruling that superseding
indictment reset speedy-trial clock, in part because “the superseding indictment
added an additional conspiracy count”). Under these circumstances, the superseding
indictment reset Ray’s speedy-trial clock.
                                          15
speedy-trial clock. Thus, even if we reached Ray’s waived argument and accepted its

premise, it would nevertheless fail on the merits. The district court did not err in

denying Ray’s motion to dismiss based on the STA.

IV.    Evidence Destruction and Due Process

      Ray next argues that the government violated his due-process rights when it

destroyed a letter he wrote to the IRS in 2007. He further asserts that the government

knew this letter was exculpatory, and that his inability to present the letter to the jury

prejudiced his defense. Alternatively, he asserts that even if the letter’s exculpatory

value wasn’t apparent at the time the government destroyed it, the evidence was

potentially helpful to his defense, and the government destroyed that evidence in bad

faith. The district court held that the letter wasn’t exculpatory and that the

government didn’t destroy the letter in bad faith. We review both of these rulings for

clear error. United States v. Bohl, 

, 909 (10th Cir. 1994).

      The Due Process Clause of the Fourteenth Amendment requires the

government to disclose exculpatory evidence to a criminal defendant. California v.

Trombetta, 

, 485 (1984). When the government fails to preserve

exculpatory evidence, we will find a due-process violation if the defendant can show

that (1) the missing evidence “possess[ed] an exculpatory value that was apparent

before the evidence was destroyed,” and (2) “the defendant [was] unable to obtain

comparable evidence by other reasonably available means.” 

But if the

evidence’s exculpatory value wasn’t apparent at the time the government destroyed

it, then the government’s conduct violates a criminal defendant’s due-process rights

                                            16
only if (1) the evidence was potentially useful for the defense and (2) the government

acted in bad faith in destroying it. Arizona v. Youngblood, 

, 58 (1988).

       Here, Ray argues that the government violated his due-process rights when the

IRS destroyed a 2007 letter in which Ray challenged the IRS’ decision to suspend his

ability to electronically file tax returns. Because the IRS destroyed Ray’s letter

pursuant to its standard destruction policy in 2011, the government was unable to

produce it at Ray’s 2016 trial. But the government did produce at trial a document

that the IRS’ Submission Processing Center sent to Ray in response to his letter. In

that response, the IRS explained that it suspended Ray’s electronic-filing privileges

based on his failure to file IRS Form 8453.5 The IRS eventually reinstated Ray’s

ability to electronically file returns in 2007.

       According to Ray, his 2007 letter advised the IRS that he and his wife had

done nothing wrong. Ray contends the letter’s exculpatory nature was apparent in

2011 when the IRS destroyed the letter and that he couldn’t obtain comparable

evidence to present at trial. See 

. Ray’s argument as to the

exculpatory nature of the letter is not entirely clear. He contends,

       When a tax[-]return filing service like Cheapertaxes fail[ed] to file [Form
       8453] for many, many, returns, it’s a red flag for fraud that triggered an
       investigation and suspension of electronic[-]filing privileges. After
       investigation of the problem, the IRS concluded that not filing the form was
       excused, or, perhaps the IRS agreed the returns were true and correct. This
       is more than speculation that the [letter] was exculpatory.


       5
        Form 8453 authorizes the direct deposit of a taxpayer’s refund and requires
the taxpayer and tax-preparer to attest that they reviewed and confirmed the return’s
accuracy.
                                            17
Aplt. Br. 33.

       As we read Ray’s argument, he appears to suggest that the letter somehow

demonstrates that he couldn’t have committed tax fraud. But as the government

points out, the IRS’ response to Ray’s letter shows that Ray’s letter wasn’t

exculpatory. That response confirms that Ray’s suspension stemmed from his failure

to timely file IRS Form 8453—not from the fraud leading to Ray’s convictions in this

case. See 

. Thus, the letter and the IRS’ reinstatement of

Ray’s electronic-filing abilities reflect Ray’s correction of a record-keeping issue, not

vindication that Ray filed truthful tax returns. And because the evidence wasn’t

exculpatory, we need not address Ray’s argument that he lacked access to

comparable evidence. See 

–90.

       Alternatively, Ray alleges that even if the letter wasn’t exculpatory, the

government nevertheless violated his due-process rights because the letter was at

least potentially useful to his defense and the government destroyed the letter in bad

faith. See 

. But even if we assume that the letter was

potentially useful to his defense, we find no evidence that the government destroyed

the letter in bad faith. See 

five factors when determining whether the government destroyed

or lost evidence in bad faith: (1) whether the government was on notice of the

potentially exculpatory value of the evidence; (2) whether the potential exculpatory

value of the evidence was based on more than mere speculation or conjecture;

(3) whether the government had possession or the ability to control the disposition of

                                           18
the evidence at the time it learned of the potential exculpatory value; (4) whether the

evidence was central to the government’s case; and (5) whether there’s an innocent

explanation for the government’s failure to preserve the evidence. See 

–12. Here, Ray satisfies none of these factors. For the reasons we discuss

above, the letter had no potential exculpatory value—speculative or otherwise.

Moreover, Ray didn’t inform the government about the letter’s alleged exculpatory

value until three years after the IRS destroyed it pursuant to a standard destruction

policy. Finally, the letter played no role in the government’s case.

      Ray’s 2007 letter possessed no exculpatory value when the government

destroyed it. See Trombetta, 467 U.S at 489. Further, there’s no evidence the

government destroyed the letter in bad faith. See 

.

Accordingly, the district court didn’t clearly err in finding that the government didn’t

violate Ray’s due process rights by destroying the letter.

V.    Amendment of the Indictment

      Ray’s final claim is that the district court violated his Fifth and Sixth

Amendment rights when it constructively amended count 1 of the indictment in a

manner that—according to Ray—broadened the charges against him. See United

States v. Hien Van Tieu, 

, 921 (10th Cir. 2002), abrogated on other

grounds by United States v. Little, 

(10th Cir. 2016). Our review is de

novo. See United States v. Zar, 

, 1050 (10th Cir. 2015).

      A constructive amendment occurs when there’s a “possibility that the

defendant was convicted of an offense other than that charged in the indictment.”

                                           19
United States v. Apodaca, 

, 428 (10th Cir. 1988). Ray argues that

district court created such a possibility here when it presented a slightly different

version of the second superseding indictment to the jury at the opening of the trial.

Because Ray’s argument focuses on the distinctions between the original second

superseding indictment and the slightly altered version the district court presented to

the jury, we begin with a detailed description of the former and then explain how it

differs from the latter.

       The second superseding indictment included 36 criminal counts relevant to this

issue. The first count charged Ray and his wife with conspiracy to defraud the United

States. Counts 2 through 6 charged Ray individually with aiding and assisting in the

preparation of false tax returns. And counts 7 through 36 charged Ray’s wife

individually with aiding and assisting in the preparation of false tax returns.

       Within the first count, paragraphs 12 through 17 listed the overt acts allegedly

performed in furtherance of the conspiracy. Paragraph 14 specifically incorporated

the acts charged in counts 2 through 6. And paragraph 15 specifically incorporated

the acts charged in counts 7 through 36. The acts incorporated in these two

paragraphs appeared in a chart format under their respective counts.

       At trial, when reading the indictment to the jury, the district court made a few

alterations to the second superseding indictment. It replaced the name of Ray’s wife

with the phrase “another person,” or something similar. R. vol. 6, 107. It also

replaced the entirety of the text related to counts 7 through 36 (the counts against

Ray’s wife) with the word “omitted.” 

Then, for the first count, the district

                                           20
court narrowed the number of overt acts allegedly performed in furtherance of the

conspiracy. Specifically, although paragraph 15 in the second superseding indictment

incorporated counts 7 through 36 as overt acts, the version of the indictment the

district court read to the jury only included nine of those 29 overt acts.6 In making

this change, the district court removed the portion of the chart showing those nine

overt acts from its original location in the second superseding indictment—as part of

counts 7 through 36—and included it in paragraph 15, which set out the alleged overt

acts related to count 1.

       Ray argues that the altered indictment effectively alleged new overt acts by

(1) excluding the name of his wife, (2) omitting the counts alleged against his wife,

and (3) moving a chart illustrating the alleged overt acts to a new location in the

amended indictment.

       We disagree. It is common practice at trial to omit from an indictment

information that’s no longer relevant to the offenses—such as counts related to a

codefendant who previously pleaded guilty. Thus, the district court didn’t amend the

indictment by substituting phrases like “another individual,” R. vol. 6, 107, for Ray’s

wife’s name, see United States v. Miller, 

, 1356 (1985) (“A part of the

indictment unnecessary to and independent of the allegations of the offense proved

may normally be treated as ‘a useless averment’ that ‘may be ignored.’” (quoting

Ford v. United States, 

, 602 (1927))). And the district court’s decision to


       6
        The government selected those nine overt acts because it planned on using
that subset at trial, rather than all 29 overt acts included in counts 7 through 36.
                                           21
move part of the chart from counts 7 through 36 to paragraph 15 of count 1 didn’t

allege any new overt acts against Ray because the district court (1) copied the acts

from one section of the indictment and moved them to another and (2) included fewer

overt acts than those listed in the second superseding indictments. In fact, the district

court actually narrowed the scope of the count, leaving no “possibility [Ray] was

convicted of an offense other than that charged in the [second superseding]

indictment.” Hien Van 

. Accordingly, we conclude the district

court didn’t constructively amend the indictment by reading a revised version of the

second superseding indictment to the jury.

                                      Conclusion

      Because the government never lodged a detainer with Colorado—thus

rendering the IAD inapplicable—the district court did not abuse its discretion in

denying Ray’s motion to dismiss based on the IAD. The district court also properly

rejected Ray’s prosecutorial-vindictiveness argument because Ray failed to establish

a presumption of vindictiveness. Further, Ray waived the specific STA claim he

raises on appeal and, in any event, this claim fails on the merits. Ray’s due-process

claim also fails because he doesn’t show that the destroyed evidence was exculpatory

or that the government destroyed that evidence in bad faith. Lastly, the district court

didn’t constructively amend the indictment by slightly altering it before reading it to

the jury. Accordingly, we affirm.




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