FILED
                                                                   United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                    Tenth Circuit

                               FOR THE TENTH CIRCUIT                       June 11, 2020
                           _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 19-1197
                                                 (D.C. No. 1:18-CR-00266-PAB-5)
 JEREMIAH U. SERR,                                           (D. Colo.)

          Defendant - Appellant.
                         _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before PHILLIPS, McKAY**, and MORITZ, Circuit Judges.
                   _________________________________

      Jeremiah Serr appeals his convictions for conspiracy and possession of

methamphetamine with intent to distribute. For the reasons explained below, we

affirm.



      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       **
          Although the late Honorable Monroe G. McKay was assigned to and
participated in the disposition of this matter before his death on March 28, 2020, his
vote was not counted. Yovino v. Rizo, 

, 710 (2019) (holding that federal
court may not count vote of judge who dies before decision is issued). Yet if the
remaining two panel judges are in agreement, “[t]he practice of this court permits
[them] . . . to act as a quorum in resolving the appeal.” United States v. Wiles, 

, 1516 n.* (10th Cir. 1997); see also 28 U.S.C. § 46(d) (noting that circuit
court may adopt procedures permitting disposition of appeal where remaining
quorum of panel agrees on disposition). The remaining panel members have acted as
a quorum with respect to this order and judgment.
                                     Background

      The evidence at trial showed that from October 2016 to May 2018, a group of

individuals including Serr conspired to distribute methamphetamine from Colorado

to Virginia. The government’s primary witness was Christina Fitzgerald, a member

of the conspiracy who pleaded guilty and agreed to cooperate with the government.

Fitzgerald testified that in October 2016, when she was living in Virginia, Chris

Karten asked her if she could obtain two pounds of methamphetamine for him.

Fitzgerald contacted coconspirator Joanna Zarate-Suarez, who lived in Denver, about

buying the methamphetamine that Karten requested.1 According to Fitzgerald, she

and Karten planned to meet Zarate-Suarez’s courier, Mia (short for Jeremiah, Serr’s

first name), in Kansas City to exchange the money for the drugs. Serr was supposed

to arrive in a silver Honda, but he never showed up.

      Fitzgerald testified that Zarate-Suarez explained that Serr missed the meeting

because he was stopped by police. Fitzgerald and Karten then drove to Colorado and

completed the drug deal there, obtaining the methamphetamine directly from Zarate-

Suarez and coconspirator Edwin Roman-Acevedo.

      Along with Fitzgerald’s testimony, the government presented evidence from

the law-enforcement officer who arrested Serr in Kansas in October 2016. The officer

testified that he clocked Serr driving 119 miles per hour on the highway. When the

officer handed Serr the speeding ticket, he smelled marijuana in Serr’s car. Serr told


      1
       Fitzgerald explained that a pound of methamphetamine in Virginia cost
$15,000 to $18,000, but in Colorado, the same quantity cost only $3,000 to $5,000.
                                           2
the officer that he had smoked marijuana in the car and gave the officer a container

with marijuana in it. The officer then searched the car and discovered a coffee

thermos containing a crystal substance he believed to be methamphetamine. The

forensic scientist who tested the crystal substance in a Kansas lab testified that it was

433.5 grams—about one pound—of methamphetamine. Serr pleaded guilty to a state

charge for possessing methamphetamine with intent to distribute and spent several

months incarcerated there; the state court eventually imposed a suspended sentence

of 146 months in prison and placed Serr on probation for three years.

      The next transaction occurred about a month later. Fitzgerald testified that in

November 2016, Karten asked her to get more methamphetamine, so she contacted

Zarate-Suarez again. This time, Fitzgerald flew to Colorado with Karten’s girlfriend,

Sarah MaGuire; they brought about $16,000 in cash. But Zarate-Suarez and

Fitzgerald, along with another conspirator, Omar Gonzalez-Hernandez (Zarate-

Suarez’s husband), decided to rob MaGuire instead of completing the drug

transaction. Roman-Acevedo and two other men drove MaGuire somewhere on the

pretense of buying cigarettes, assaulted her, and left her by the side of the road.

Meanwhile, Fitzgerald took all MaGuire’s belongings and the $16,000 in cash from

their hotel room, and Zarate-Suarez and Gonzalez-Hernandez drove Fitzgerald to a

different hotel. Zarate-Suarez later divided up the cash, giving $500 to Fitzgerald,

less than that to Roman-Acevedo and the other two men, and keeping the remainder

for herself. A few days later, Fitzgerald drove back to Virginia with Roman-Acevedo,

another man, and half of a pound of methamphetamine. About a month later,

                                            3
Fitzgerald reported to prison to serve a sentence for previously violating the

provisions of her supervised release.

      Fitzgerald testified that after she was released from prison in 2018, Karten

again contacted her, this time seeking six pounds of methamphetamine. Unbeknownst

to Fitzgerald, Karten was now working as an informant for law enforcement.

Fitzgerald contacted Zarate-Suarez, who said she could provide five pounds of

methamphetamine. Fitzgerald flew to Denver in May 2018 and met up with Zarate-

Suarez and Gonzalez-Hernandez. But when Zarate-Suarez, Fitzgerald, and Roman-

Acevedo attempted to meet with Karten, law enforcement stopped their car for an

equipment violation. And after a drug dog alerted to drugs in their car, they engaged

in a high-speed car chase in which they attempted to dissolve the methamphetamine

in water and discard it out the windows.

      After the chase ended, law enforcement arrested Zarate-Suarez, Fitzgerald, and

Roman-Acevedo. The following day, officers went to the house where Zarate-Suarez

lived and found both Gonzalez-Hernandez and Serr there. The officers arrested Serr

on an outstanding warrant unrelated to this case.

      The government charged Zarate-Suarez, Fitzgerald, Serr, Gonzalez-Hernandez,

and Roman-Acevedo with conspiring to distribute methamphetamine. In relevant

part, it further charged Serr with possessing methamphetamine with intent to

distribute in October 2016. The jury convicted Serr on both counts.2 The district


      2
       Zarate-Suarez, Fitzgerald, and Roman-Acevedo entered guilty pleas. The
government tried Serr and Gonzalez-Hernandez together.
                                           4
court sentenced Serr to the statutory minimum, ten years in prison. See 21 U.S.C.

§ 841(b)(1)(A)(viii). Serr appeals, challenging his convictions.

                                       Analysis

I.    Conspiracy

      Serr first urges us to reverse his conspiracy conviction because, as he argued

below in his motion for acquittal, the evidence supporting the existence of the

overarching conspiracy was insufficient. We review a challenge to the sufficiency of

the evidence de novo, including one that arises in a motion for acquittal under

Federal Rule of Criminal Procedure 29, “viewing the evidence and the reasonable

inferences to be drawn therefrom in the light most favorable to the government.”

United States v. Dewberry, 

, 1028 (10th Cir. 2015) (quoting United

States v. Hale, 

, 1222 (10th Cir. 2014)).

      Serr specifically argues that the district court should have granted his motion

for acquittal because the government failed to show the existence of one large

conspiracy and instead proved only three smaller conspiracies. “To prove a

conspiracy, the government must establish: (1) that an agreement existed between

two or more people to violate the law; (2) that the defendant knew at least the

conspiracy’s essential objectives; (3) that the defendant knowingly and voluntarily

became a part of the conspiracy; and (4) that the co[]conspirators were

interdependent.” United States v. Hill, 

, 1266 (10th Cir. 2015).

      Though Serr does not expressly tie his argument to any specific element of

conspiracy, he generally contends that there was insufficient evidence tying him to

                                           5
the conspiracy alleged in the indictment, which spanned from October 2016 to May

2018. We interpret this general argument as a challenge to the interdependence

element. See, e.g., United States v. Caldwell, 

, 1329 (10th Cir. 2009)

(“In reviewing a jury’s determination that a single conspiracy existed, ‘a focal point

of the analysis is whether the alleged coconspirators’ conduct exhibited

interdependence.’” (quoting United States v. Edwards, 

, 432 (10th Cir.

1995))). We do so because “a single conspiracy does not exist solely because many

individuals deal with a common central player. What is required is a shared, single

criminal objective, not just similar or parallel objectives between similarly situated

people.” United States v. Small, 

, 1182 (10th Cir. 2005) (citation

omitted) (quoting United States v. Evans, 

, 670 (10th Cir. 1992)). And

interdependence gets to this question, asking whether “coconspirators ‘inten[d] to act

together for their shared mutual benefit within the scope of the conspiracy charged.’”

(alteration in original) (quoting 

).

      To support his multiple-conspiracy argument, Serr relies on Kotteatkos v.

United States, 

(1946), United States v. Baldridge, 

(10th

Cir. 2009), and United States v. Carnagie, 

(10th Cir. 2008). But these

cases are distinguishable because, critically, they involved financial conspiracies

rather than drug conspiracies. And “because the underlying transaction [in a financial

conspiracy] is generally lawful, one cannot infer an illegal common purpose in the

same way that a common purpose could be found in a drug conspiracy,” in which

“[e]ach participant is presumptively aware of the illegal nature of the activity.”

                                           6


n.5. Thus, “there is a higher standard for proving

interdependence in” financial conspiracies. 

–37. Because

this case involves a drug conspiracy, statements from Kotteatkos, Baldridge, and

Carnagie about the burden of proving overarching versus separate conspiracies

provide little guidance here.

      Instead, this case presents a typical drug conspiracy in which we can infer that

Serr shared an illegal common purpose with Zarate-Suarez, Fitzgerald, and the other

conspirators—and acted on that purpose—from the simple fact that he attempted to

deliver methamphetamine from Zarate-Suarez to Fitzgerald in October 2016. See

(noting that “a single act can be sufficient to demonstrate

interdependence”). But Serr contends that such an inference fails here because

Fitzgerald testified that she made three separate agreements with Zarate-Suarez: one

in October 2016, one in November 2016, and one in May 2018. He asserts that based

on this testimony, the jury could only have found three separate conspiracies, not one

larger conspiracy.

      Yet the existence or breadth of a conspiracy is not a question on which

testimony from a single fact witness is definitive; it is a question to be answered by

the jury by comparing the evidence it has heard against the legal definition of

conspiracy. See

because “[d]istinguishing between a single, large

conspiracy and several smaller conspiracies is often difficult,” appellate courts often

“defer to the jury’s determination of the matter”). Moreover, a single conspiracy does

not fracture into multiple conspiracies merely because it involves a series of separate

                                           7
transactions. See United States v. Brewer, 

, 799 (10th Cir. 1980) (“The

simple fact ‘that a number of separate transactions may have been involved . . . does

not establish the existence of a number of separate conspiracies.’” (alteration in

original) (quoting United States v. Parnell, 

, 1382 (10th Cir. 1978))).

Thus, when deciding whether Serr was guilty of conspiring with Zarate-Suarez,

Fitzgerald, Gonzalez-Hernandez, and Roman-Acevedo, the jury was free to weigh

Fitzgerald’s testimony about three separate agreements and the other evidence it

heard against its instructions defining a conspiracy. Those instructions included

details on single versus multiple conspiracies as well as Serr’s multiple-conspiracy

theory of the case. Stated more plainly, Fitzgerald’s testimony about “separate

agreement[s]” does not render the government’s conspiracy evidence insufficient and

thus take that question away from the jury. R. vol. 5, 704.

      Next, Serr points out that no evidence directly connected him to the November

2016 or May 2018 events. In particular, he points out that his October 2016 arrest in

Kansas and his incarceration there through about mid-February 2017 precluded his

involvement in the November 2016 events. “But ‘a conspiracy does not end simply

because one conspirator has been arrested . . . .’” United States v. Alcorta, 

, 1139 (10th Cir. 2017) (quoting United States v. Melton, 

, 1405

(10th Cir. 1997)); see also United States v. Fishman, 

, 1190 (10th Cir.

2011) (“A single conspiracy does not splinter into multiple conspiracies because

members come and go.”). Moreover, although Serr contends that his “involvement

ended with his arrest in Kansas,” Aplt. Br. 24, “a conspirator’s arrest or incarceration

                                           8
by itself is insufficient to constitute his withdrawal from the conspiracy,” 

(quoting 

). On the contrary, “‘each

member of the conspiracy is legally responsible for the crimes of fellow conspirators’

. . . ‘until the conspiracy accomplishes its goals or that conspirator withdraws.’”

United States v. Randall, 

, 1294 (10th Cir. 2011) (first quoting United

States v. Russell, 

, 1322 (10th Cir. 1992), then quoting United States v.

Brewer, 

, 185 (10th Cir. 1993)). Thus, the absence of evidence directly

connecting Serr to the latter transactions does not render the government’s

conspiracy evidence legally insufficient.

      Further, Serr acknowledges the government’s circumstantial evidence

connecting him to the other conspirators: law enforcement found Serr at Zarate-

Suarez’s house the day after Zarate-Suarez’s arrest; Serr lived in the same

neighborhood as Zarate-Suarez; and a witness testified that Serr knew the Zarate-

Suarez family. And, most importantly, the evidence showed that Kansas law

enforcement arrested Serr while he was driving through Kansas on his way to deliver

methamphetamine from Zarate-Suarez to Fitzgerald. “[A] single act can be sufficient

to demonstrate interdependence” and to show that an individual intended to act for

the “shared mutual benefit” of the conspiracy. 

. Thus,

from this evidence and contrary to Serr’s argument, a reasonable jury could have

concluded that he was a member of the conspiracy to distribute methamphetamine

from Colorado to Virginia that stretched from October 2016 to May 2018 and

involved Zarate-Suarez, Fitzgerald, Gonzalez-Hernandez, and Roman-Acevedo. We

                                            9
therefore reject Serr’s argument that the district court erred in denying his motion for

acquittal on the conspiracy charge.3

      In a related argument, Serr contends that the district court erred in admitting

evidence of events that occurred after his October 2016 arrest because the arrest

automatically and involuntarily terminated his participation in any ongoing

conspiracy. See Fed. R. Evid. 801(d)(2)(E) (permitting courts to admit as evidence

statements “made by the party’s coconspirator[s] during and in furtherance of the

conspiracy”). But Serr concedes that the we need not reach this issue unless we first

determine that his arrest withdrew him from the conspiracy.

      Generally, to withdraw from a conspiracy, “an individual must take affirmative

action, either by reporting to the authorities or by communicating his intentions to the

coconspirators.” 

(quoting United States v. Powell, 

, 1435 (10th Cir. 1992)). The affirmative-withdrawal requirement means

that “[m]ere cessation of one’s participation in a conspiracy is insufficient to

demonstrate withdrawal.”

States v. Hughes, 

, 1321

(10th Cir. 1999)). In other words, “[p]assive nonparticipation in the continuing


      3
        For the same reason, we reject Serr’s variance argument. See 

(“A variance arises when an indictment charges a single conspiracy but
the evidence presented at trial proves only the existence of multiple conspiracies.”).
“We treat a conspiracy[-]variance claim as an attack on the sufficiency of the
evidence supporting the jury’s finding that each defendant was a member of the same
conspiracy.” 

(quoting 

). Here, as
already discussed, the evidence at trial was sufficient for a reasonable jury to find the
existence of the conspiracy as charged. Thus, no variance occurred. See United States
v. Marquez, 

, 1043 (10th Cir. 2018) (rejecting variance argument
because evidence of conspiracy was sufficient).
                                           10
scheme is not enough to sever the meeting of minds that constitutes the conspiracy.”

Smith v. United States, 

, 112–13 (2013).

       Despite this clear requirement that an individual generally must affirmatively

withdraw from a conspiracy, Serr relies on three main cases to support his position

that his arrest automatically and involuntarily terminated his participation in the

conspiracy: United States v. Dunn, 

(5th Cir. 1985), United States v.

Smith, 

(8th Cir. 1978), and Melton, 

. Yet none of these

cases support Serr’s argument. For example, Serr is correct that in Melton we

ultimately concluded that the defendant’s “role in the conspiracy ended with his

–06. But before doing so, we specifically stated that “a

conspirator’s arrest or incarceration by itself is insufficient to constitute his

withdrawal from the conspiracy.”

(emphasis added). Instead, only in

“certain circumstances” may an arrest “amount to a withdrawal.”

circumstances in Melton included a new conspiracy after the defendant’s arrest that

replaced the original agreement and a concession from the government that the arrest

terminated the defendant’s role in the conspiracy. See

But here, the

same conspiracy to distribute methamphetamine continued after Serr’s arrest and his

return to Colorado and the government has not conceded that Serr’s arrest terminated

his role in the conspiracy.


       4
       Although it is not entirely clear, it appears that the defendant’s arrest in
Melton was for his role in the conspiracy, not for some other crime. 

. Thus, Melton likely contains the same role-in-the-conspiracy limitation as
Dunn and Smith.
                                            11
      The out-of-circuit cases Serr cites are also unpersuasive. In Dunn, the court

stated that an individual’s “participation in a conspiracy ends when that person is

arrested for his [or her] role in the 

(emphasis added).

And Serr’s Kansas arrest was for possessing methamphetamine, not for his role in

this conspiracy. Although the government introduced evidence that Serr was carrying

the drugs from Zarate-Suarez to Fitzgerald in furtherance of this conspiracy, he never

told Kansas law enforcement as much; indeed, Kansas prosecuted Serr only for

possessing drugs, not for conspiracy. Thus, Dunn is inapposite. As for Smith, Serr

quotes from a concurring opinion that states “[a]lthough the arrest of one

coconspirator terminates his membership in the conspiracy, it does not follow that the

conspiracy itself is 

(Lay, J., concurring). As support

for that statement, the Smith concurrence cites United States v. Williams, 

(8th Cir. 1977). There, the defendant argued that the overall conspiracy

terminated when two of its members were arrested for their role in the conspiracy.

See 

. Thus, by citing Williams, the Smith concurrence

incorporates the same role-in-the-conspiracy limitation that appears in Dunn and is

unpersuasive for the same reason. Indeed, as the government points out, the Eighth

Circuit’s binding precedent contradicts Serr’s reading of the Smith concurrence: in

United States v. Johnson, the court stated plainly that “[i]ncarceration alone does not

constitute withdrawal.” 

, 526 (8th Cir. 2013).

      Recognizing the limitations of this caselaw, Serr urges that “[t]o the extent that

the law in the Tenth Circuit does not allow a distinction between termination by

                                          12
arrest and voluntary withdrawal,” this court should “re-examine its case[]law.” Aplt.

Br. 29. But we are bound by our prior precedent. Barnes v. United States, 

, 1147 (10th Cir. 2015). And that precedent requires more than an arrest for a

crime other than the conspiracy to show withdrawal from a conspiracy. See 

. We therefore reject Serr’s argument that his arrest automatically

and involuntarily terminated his role in the conspiracy.

      And because Serr cannot meet the governing affirmative-withdrawal standard,

he remained a member of the conspiracy during the events that took place after his

arrest. The district court therefore did not err in admitting evidence of these later

events under Rule 801(d)(2)(E).

II.   Drug Possession

      Serr next argues that the evidence was insufficient to support his conviction

for possessing methamphetamine with intent to distribute.5 As noted earlier, we

review sufficiency challenges de novo, viewing the evidence in the light most

favorable to the government. See 

. To prove this

particular possession crime, the government had to show that Serr possessed at least

50 grams of pure methamphetamine. See § 841(b)(1)(a)(viii). And Serr specifically

argues that because of a critical gap in the chain of custody, a reasonable jury could

not have concluded that the tested substance was the same substance seized from

Serr’s vehicle during his Kansas arrest. See United States v. Thomas, 

,


      5
        Serr preserved this argument when he made a general motion for acquittal
below. See United States v. Anthony, 

, 972 & n.13 (10th Cir. 2019).
                                           13
1312 (10th Cir. 2014) (noting that “deficiencies in the chain of custody . . . affect the

‘weight of the evidence, not its admissibility’” (quoting United States v. Cardenas,

, 1531 (10th Cir. 1989))).

      Serr correctly notes a gap in the chain of custody. The government presented

evidence showing that law enforcement transferred the seized drugs from Serr’s car

to a Kansas lab, from the Kansas lab to a Kansas storage facility, and from the

Kansas storage facility to a Drug Enforcement Agency (DEA) office in Colorado.

The government further presented evidence showing that a Colorado DEA agent

mailed the drugs to a DEA lab in California. But the next witness the government

presented was the DEA chemist in California who tested a drug sample and

determined its purity. The government presented no testimony or exhibit definitively

establishing that (1) the California DEA lab received the drugs that the DEA agent

mailed from Colorado or (2) the drugs the California DEA chemist tested were the

drugs that the DEA agent mailed from Colorado. Indeed, the DEA chemist could not

speak to the condition of the package when it arrived or provide the name of the

person who received the package in California. He explained that this chain-of-

custody information was available on a form called a DEA-7, which he reviewed

before testifying but did not have before him on the stand.

      Nevertheless, two pieces of evidence support the inference that the drugs

mailed from Colorado and the drugs tested in California were the same. First, the

DEA chemist’s report showed that the lab received the drugs on July 25, 2018—two

days after the Colorado DEA agent testified that he sent the drugs to California.

                                           14
Second, the recorded weights are strikingly similar: the Kansas lab weighed the

unpackaged drugs at 433.5 grams; the Colorado DEA agent weighed the packaged

drugs at about 480 grams; and the California DEA chemist similarly weighed the

unpackaged drugs at 430.6 grams and the packaged drugs at 479.9 grams.6

      Thus, despite the gap in the chain of custody, a reasonable jury could conclude

that the drugs the California DEA chemist tested were the same drugs that law

enforcement seized from Serr in Kansas. See United States v. Rufai, 

,

1188 (10th Cir. 2013) (noting that sufficiency standard is whether, viewing evidence

“in the light most favorable to the government[,] . . . a reasonable jury could find [the

defendant] guilty beyond a reasonable doubt” (third alteration in original) (quoting

United States v. Kaufman, 

, 1263 (10th Cir. 2008))). We therefore

affirm Serr’s conviction for possessing methamphetamine with intent to distribute.

                                      Conclusion

      Because the evidence was sufficient for a reasonable jury to conclude that

there was one overarching conspiracy, the district court did not err in denying Serr’s

acquittal motion. For the same reason, the district court correctly found no variance

when denying Serr’s motion for a new trial. Further, Serr never affirmatively



      6
         We also note that Serr presented no evidence suggesting that any kind
tampering occurred, that the Colorado DEA agent or the California DEA chemist
acted outside of normal protocols, or that the California DEA lab’s systems for
receiving and logging evidence were inadequate or faulty in some way. Cf. United
States v. Lott, 

, 250 (7th Cir. 1988) (noting that “absent any evidence to
the contrary, the court presumes that [public officers’] official duties have been
discharged properly”).
                                           15
withdrew from the conspiracy, so the district court did not err in admitting evidence

of events in the conspiracy that followed Serr’s arrest and did not directly involve

Serr. Finally, although the government’s chain-of-custody evidence was imperfect, a

reasonable jury could conclude that the drugs tested at the federal lab in California

were the same drugs seized from Serr’s car in Kansas. Accordingly, we affirm.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




                                          16