United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2026
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                              Brandon Reeves Tyerman

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                           Submitted: October 19, 2012
                Filed: December 12, 2012 (Corrected July 10, 2013)
                                 ____________

Before LOKEN, SMITH, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

      Brandon Reeves Tyerman was convicted of be ing a felon in posse ssion of
ammunition and a firearm, and being a felon in possession of a stolen firearm . He
appeals, alleging that the district court1 improperly admitted evidence, refused a jury

      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
instruction, and denied m otions for a new trial based on im proper testimony and
cumulative error. He also attacks the su fficiency of the evidence at trial. At
sentencing, the district court applied an enhancement for obstruction of justice, which
Tyerman challenges. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                          I.

       In June 2008, Tyerman was charged in Iowa state court with stalking, going
armed with intent, and burglary of a vehicle. During the plea negotiations, locating
the firearm was a top priority for the state district attorney. Tyerman disclosed its
location to his attorney, Peter Berger. Police proceeded to recover the firearm from
Timothy Yasunaga’s house (Tyerman had stayed with Yasunaga a few times).

       In June 2009, a federal grand jury charged Tyerman on four counts. The district
court severed the first two counts. This appeal concerns the remaining two counts:
felon in possession of a firearm and ammunition, and possession of a stolen firearm.
See 18 U.S.C. § 922(g)(1); 18 U.S.C. § 922(j). Tyerman moved to suppress the
firearm, which the district court denied. In October 2009, Tyerm an pled guilty
pursuant to North Carolina v. Alford, 

(1970). He later attem pted to
withdraw the plea. The district court deni ed his request, sentencing himto 50 months’
imprisonment. This court reversed and rem    anded the case. United States v. Tyerman,

, 944 (2011). While the appeal wa    s pending before this court, the Bureau
of Alcohol, Tobacco, and Firearms mistakenly destroyed the firearmin question. ATF
is to destroy firearms only after the final disposition of a case.

       On remand, Tyerman withdrew his plea. Before trial, Tyerm an objected to
prior acts the government intended to introduce. In December 2007, he threatened to
kill his wife and her family after she said she was filing for divorce. She filed for
divorce in March 2008. In April, Tyerm  an wrapped a telephone cord around her neck,
and threatened to end both of their lives. The next day, she obtained a protective and

                                         -2-
no-contact order. Tyerman violated this order several times with phone calls and text
messages. Tyerman was found hiding in a trailer on his in-laws’ property – where his
wife was staying. He had also installed a GPS tracking device on her car. On June
4-5, Tyerman tried to drive his truck across a soybean field on his in-laws’ property.
The truck became stuck. (Over Tyerman’sobjection, the district court permitted this
prior-acts evidence.) Inside the truck, police found a Barretta gun case, an em pty
magazine, and ammunition. Those items are the basis of the charges in this case.

       In October 2011 a jury convicted Tyerman on both counts. At sentencing, a
U.S. Marshal testified that prison guardsdiscovered two homemade handcuff keys in
Tyerman’s cell. According to the M arshal, during the investigation, other inm ates
revealed Tyerman’s plans to escape from jail an d his use of the law library (which
lacked surveillance) to practice removing handcuffs. Finding the Marshal credible,
the district court applied a two-level adjustment for obstruction of justice based on the
attempted escape, sentencing Tyerman to 72 months’ imprisonment.

                                          II.

       Tyerman contends that the district court erred in denying his motion to suppress
the firearm. He argues that atto rney Berger’s disclosure of the firearm ’s location
violated the attorney-client privilege, andhis Fifth and Sixth Amendment rights. The
district court’s denial of a motion to suppress is reviewed, as to factual findings, for
clear error, and as to legal conclusions, de novo. United States v. Anderson, 

, 343 (8th Cir. 2012).

                                          A.

      Ineffective-assistance-of-counsel claims under the Sixth Amendment present
mixed questions of law and fact and are reviewed de novo. United States v. Davis,

, 508 (8th Cir. 2005). Tyerm an contends that Berger was ineffective
because disclosing the firearm’s location violated the attorney-client privilege. The

                                          -3-
government counters that Tyerm an implicitly waived the privilege because he
disclosed the firearm’s location in plea negotiations.

       A claim for ineffective assistance of counsel has two elements: (1) counsel’s
performance was deficient, and (2) th e deficient performance prejudiced the
defendant. Strickland v. Washington, 

, 687 (1984). “The defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 

       To establish a Sixth Amendment claim based on violation of the attorney-client
privilege, this court requires the defendant to prove “that the government knowingly
intruded into the attorney-client relationship.” United States v. Singer, 

,
234 (8th Cir. 1986). Tyerman admits that the government did not knowingly intrude
and only passively received the inform ation. While he argues that the Fourth,
Seventh, and Ninth circuits have left openwhether deliberate intrusion is required, this
court has not. 

attorney-client privilege can be waived, either explicitly or
implicitly. United States v. Workman, 

, 1263 (8th Cir. 1998). The
parties agree that there was no explicit waiver. During plea negotiations, however,
Tyerman disclosed the gun’s location to Berger. Berger then relayed the gun’s
location to the district attorney. As the state bond-review hearing indicates, Tyerman
was aware that his disclosure was communicated to the district attorney:

      BERGER: At the Court’s request, and the County Attorney’s request,
      you worked with me and Tim [Yasunaga] to have the gun, which
      everybody was worried about in the case, located in the house where you
      were staying, correct?

      TYERMAN: Yes.




                                         -4-
      BERGER: And that’s where you were staying, at Tim’s house, correct?

      TYERMAN: Yes.

Because Tyerman’s disclosure to Bergercame during plea negotiations, he implicitly
authorized Berger to share the informati on with the district attorney. He thus
implicitly waived the attorney-client priv ilege as to the com munications about the
gun’s location.2 This waiver, in addition to his adm
                                                   ission of no deliberate government
intrusion, demonstrates that his Sixth Amendment rights were not violated.

                                         B.

       Tyerman, assuming that the attorney-client privilege was breached, argues that
his Fifth Am endment rights were violated by a fundamentally unfair trial. Due
process claims are reviewed de novo. United States v. Summage, 

, 872
(8th Cir. 2009). To constitute a due pro
                                       cess violation, the government’s conduct must
be truly outrageous and “shock the conscience of the court.” United States v. Hunt,

, 1195 (8th Cir. 1999),quoting United States v. Pardue, 

,
847 (8th Cir. 1993). Tyerman demonstrates no government misconduct at all, thus
there is no Fifth Amendment violation.3




      2
      The Iowa Court of Appeals similarly found that the attorney-client privilege
was not breached. Tyerman v. State, No. 11-1694, 

, at *5 (Iowa
Ct. App. Oct. 17, 2012).
      3
      Assuming the privilege was breached, the Iowa Court of Appeals also
concluded that Tyerman’s due process rights were not violated. Tyerman, 

, at *8.

                                        -5-
                                           III.

       Both parties agree that ATF’s destruction of the firearm was improper. As a
result, Tyerman attempted to dismiss the case, introduce evidence of the firearm’s
destruction, and include a spoliation jury instruction. The district court declined all
three invitations.

                                            A.

       This court reviews de novo the denial ofa motion to dismiss for destruction of
evidence. United States v. Webster, 

, 446 (8th Cir. 2010). A due process
violation arises from destruction of ev idence when the evidence “possess[es] an
exculpatory value that was apparent before the evidence was destroyed, and [is] of
such a nature that the defendant would be unable to obtain comparable evidence by
other reasonably available m eans.” California v. Trombetta, 

, 489
(1984). A higher standard of proof app lies, however, when the evidence is only
potentially useful to the defendant. “[U]nless a criminal defendant can show bad faith
on the part of the police, failure to pr eserve potentially useful evidence does not
constitute a denial of due process of law.” Arizona v. Youngblood, 

, 58
(1988).

       The firearm in this case was only potentia lly useful to Tyerman. This court
recently decided a similar case about the destruction of cocaine evidence. 

. When the defendant’s case was transferred from state to federal
authorities, a state employee failed to place a notice of transfer in the file. 

The case thus displayed as “closed” and the cocaine wa s destroyed during a sem i-
annual, scheduled evidence destruction. 

destruction, the drugs were
tested for quantity and composition, and the test results remained in the record. 

This court found, therefore, that having the actual drugs in the courtroom
would have been more inculpatory than exculpatory. 

Similarly here,
fingerprint testing of the firearm was com pleted prior to destruction. Tyerm an’s

                                           -6-
fingerprints were not on the weapon – a fact introduced into evidence. Having the
firearm in the courtroom would have been more inculpatory than exculpatory.
Tyerman argues that he was unable to ade quately cross-examine the eyewitness about
the gun’s physical characteristics. Severa l photographs of the gun were available,
however, and nothing prevented Tyerm an from using a replica during cross-
examination.

       At most, the firearm was potentially usef ul to Tyerman. Therefore, he must
demonstrate that the governm ent acted in bad faith by destroying evidence. See

. Tyerman argues that a reckless destruction equates to
bad faith. This court rejects that argument. 

(“As an initial
matter, we reject Webster’s invitation toimpose a lesser standard of culpability on the
part of the governm ent in this case.”). Here, the ATF agent destroyed the firearm
mistakenly, but not in bad faith. The district court did not err by denying Tyerman’s
motion to dismiss for destruction of evidence.

                                         B.

      Tyerman asserts that the district court erred by denying him the ability to
present evidence about the firearm ’s destruction. This court reviews evidentiary
rulings for abuse of discretion. United States v. Beasley, 

, 533 (8th Cir.
2012). The actual weapon is not needed to sustain a felon-in-possession conviction
– even eyewitness testimony will suffice. United States v. Dobbs, 

, 910-
11 (8th Cir. 200 6). Even so, because the weapon was destroyed, the fingerprint
expert, the detective, and the owner Yasunaga could not match the photograph of the
weapon to the actual weapon. Tyerman claims prejudice by that lack of testimony,
and that he should therefore be able to present evidence of the weapon’s destruction.

      Tyerman was not prejudiced by the inability of the three individuals to match
the photograph to the actual weapon. First, the fingerprint evidence was beneficial to
him because none of the fingerprints on the weapon were his. The expert’s inability

                                         -7-
to match the photograph to the weapon was not prejudicial to Tyerman. Second, the
detective testified that he norm ally did not go back and m atch photographs to
firearms. Third, one of the photographs displayed the firearm’s serial num ber.
Yasunaga matched that serial number to his ATF documentation from purchasing the
firearm. Therefore, there was no need for Yasunaga to match the photograph to the
actual weapon.

      The district court did not abuse its discretion in prohibiting Tyerm an from
presenting evidence about the firearm’s destruction.

                                           C.

       At the trial’s conclusion, Tyerman requested a spoliation ni struction,4 which the
district court denied. This court reviews the denial of a proposed jury instruction for
abuse of discretion and reverses only if the instruction’s omission was prejudicial.
United States v. Espinoza, 

, 783 (8th Cir. 2012).

       This court has not applied the spolia tion doctrine in a crimin al case. United
States v. Davis, 

, 925 (8th Cir. 2012). Even if this court were to do so,
a showing of the governm ent’s bad faith would be required. 

v.
Ritschel, 

, 965 (8th Cir. 2011). Tyerman argues that this court has left
open the possibility of a spoliation instruction absent a showing of bad faith. But this

      4
       Tyerman offered the following instruction:

      Evidence has been presented the Government has intentionally destroyed
      evidence, specifically, a 9m m Beretta handgun, m odel 92FS, serial
      number BER056350; an ammunition magazine for the handgun; and a
      case for the handgun. If you find that this evidence existed and the
      Government knowingly and intentionally destroyed this evidence, you
      may but are not required to concludethat this evidence would have been
      adverse or unfavorable to the Government and supportive or favorable
      to Mr. Tyerman.

                                          -8-
court certainly rejected a spoliation inst ruction on the basis of m ere negligence.
Stevenson v. Union Pac. R.R. Co., 

, 746-47 (8th Cir. 2004). Here, the
district court found, correctly, that the ATF was only negligent in destroying the
firearm. The district court’s denial ofTyerman’s proposed spoliation instruction was
not an abuse of discretion.

      Moreover, the party requesting a spo liation instruction must demonstrate
prejudice. 

. As discussed, the firearm         was m ore
inculpatory than exculpatory, and Tyerman was not prejudiced by its destruction.5

                                           IV.

       Tyerman argues that the district court erred by adm
                                                         itting the prior-acts evidence
of the events leading up to the charges. The district court ruled that the acts were
admissible both as intrinsic evidence and pursuant to Federal Rule of Evidence 404(b).
This court reviews the district court’s ev identiary rulings for abuse of discretion.


      5
        On appeal, Tyerman takes issue with the given instruction’s language that the
firearm “no longer exists.” He did not, however, object to that specific language in
the district court. While he continued toargue for his spoliationinstruction, he did not
object to the “no longer exists” language. Because there was no objection, review of
this instruction is for plain error. United States v. Vanover, 

, 1119 (8th
Cir. 2011) (per curiam). Reversal is only appropriate where there is (1) error; (2) that
is clear or obvious; (3) affects the substantial rights of the defendant; (4) and seriously
affects the fairness, outcome or reputation of judicial proceedings. 

States v. Marcus, ___ U.S. ___, 

, 2164 (2010). This instruction was
not error because the jury instruct ions, taken as a whole, fairly and adequately
submitted the issues to the jury. United States v. Garcia-Gonon, 

, 591
(8th Cir. 2006). The instruction twice references the fact that the allegations are only
alleged, and the instruction correctly statesthe law. Moreover, to prove prejudice, the
defendant must establish a reasonable probab ility that but for the alleged error, the
result of the trial would have been different. 

. Here, that
is not the case because Tyerman stated to          the jury in closing, on at least four
occasions, that the weapon no longer existed.

                                           -9-
United States v. Street, 

, 624 (8th Cir. 2008). Rule 404(b) rulings are
reversed “only when such evidence cl early had no bearing on the case and was
introduced solely to prove the defendant ’s propensity to commi t criminal acts.”
United States v. Aldridge, 

, 713 (8th Cir. 2011), quoting United States
v. Henderson, 

, 1182 (8th Cir. 2010).

       Intrinsic evidence is evidence that “‘co mpletes the story’ or provides a ‘total
picture’ of the charged crime.” United States v. Johnson, 

, 808 (8th Cir.
2006), citing United States v. Forcelle, 

, 842 (8th Cir. 1996). The prior-
acts evidence helps tell the story of why Tyerman’s truck ended up in a field with the
ammunition in it. At least some p rior acts are necessary to connect the field to
Tyerman’s wife and to explain why he          was even in the area. Further, the
government’s case relied on constructive possession. The prior acts helped establish
that the gun case and ammunition in Tyerman’s truck were in fact his.

       Alternatively, as the district court ruled, this evidence is adm issible under
Federal Rule of Evidence 404(b). Prior-acts evidence “may be admissible for another
purpose [other than propensity] , such as proving m otive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.
R. Evid. 404(b)(2). Here, the evidence demons trates motive and intent. To be
admissible under 404(b), evidence must be (1) relevant to a material issue; (2) similar
in kind and not overly remote in time to the crime charged; (3) supported by sufficient
evidence; and (4) higher in probativevalue than prejudicial effect. 

.

       As to the first factor, Tyerman argues th at motive and intent are irrelevant in
this felon-in-possession case because all the government must prove is that he is a
felon who possessed a firearm . This ar gument, however, ignores this court’s
precedent that 404(b) evidence may establish motive and intent in felon-in-possession
cases. See, e.g., United States v. Claybourne, 

, 797 (8th Cir. 2005);
United States v. Conrad, 

, 857-58 (8th Cir. 2003); United States v.

                                         -10-
Fuller, 

, 147 (8th Cir. 1989). Theevidence also helps establish knowing
possession of the firearm and ammunition.

       Second, Tyerman believes that the prior acts are different than, and too remote
from, the felon-in-possession crime. The similar-in-kind requirement is less important
when the evidence is used to establish motive (as compared to knowledge or the other
categories in 404(b)). United States v. Farish, 

, 820 n.1 (8th Cir. 2008)
(allowing domestic-abuse evidence to prove motive for arson). Additionally, all of
the acts in evidence occurred within six months of the charged crime – certainly not
too remote for 404(b) evidence. See United States v. Strong, 

, 905-06
(8th Cir. 2005) (describing the general reluctance to admit events occurring more than
thirteen years before the crime charged, but nonetheless admitting events occurring
sixteen years before the crime).

      Third, the allegations of prior acts m ust be supported by sufficient evidence.

. The district court found they were (which Tyerman does
not challenge).

       Finally, Tyerman contends that the evidence is more prejudicial than probative
because it tends to show only that he isa bad person who commitscrimes. Damaging
evidence is always prejudicial; the question is whether the evid ence is unfairly
prejudicial. See Fed. R. Evid. 403. At oral argument, the governm ent made the
paradoxical argument that the evidence is not unfairly prejudicial because the case
against Tyerman was overwhelm ing, yet it claims the prior-acts evidence was
necessary for the jury. While the government cannot have it both ways, the district
court did hear Tyerman’s full argument why the evidence is prejudicial. This court
gives great deference to the d istrict court’s weighing of the probative value of
evidence against its prejudicial effect. 

. The district
court did not abuse its discretion by admitting the prior-acts evidence.




                                        -11-
                                          V.

       Tyerman moved for a mistrial and a new trial based on im proper testimony.
The district court denied the m otion. Th is court reviews for abuse of discretion.
United States v. Garrett, 

, 624 (8th Cir. 2011). “The district court is in
a far better position to measure the effect ofan improper question on the jury than an
appellate court which reviews only the cold record.” 

States v.
Nelson, 

, 897 (8th Cir. 1993).

      While incarcerated before trial, Tyer man made incriminating statements to
another inmate, including comments that he wanted to hire someone to kill his wife.
The district court permitted the inmate to testify, but prohibited testimony about any
murder-for-hire. Tyerman asserts that two specific exchanges justify a mistrial or a
new trial.

      First, at the beginning of c ross-examination, Tyerman’s counsel asked the
inmate about the color of the prison jumpsuit he was wearing:

      Q:     What’s the orange for?
      A:     I think it has to do with my charge.
      Q:     What does that mean?
      A:     A weapon.
      Q:     So if you’re wearing orange, it means that you might be violent?
      A:     It’s the same one that Brandon [Tyerman] had on.

      Ms. Luxa [Government Attorney]:           Objection, Your Honor.
      The Court: Sustained.

Tyerman argues that this testimony should result in a mistrial because it showed only
a propensity for violence. However, afterthe objection, Tyerman’s attorney attempted
to use this statement to impeach the inmate , asking if he had “an ax to grind” with
Tyerman. Further, as the district court correctly ruled, the only fact the jury learned


                                         -12-
from the testimony is that Tyerman is charged with a weapons-related crime – a fact
it was already well aware.

      Second, during cross-examination, Tyerman’s counsel asked about the inmate’s
wife and children:

      Q:     So I would imagine that you would have some incentive to want
             to get out and spend some time outside of prison.
      A:     I think anyone would.
      Q:     Okay. That would be pretty important to you?
      A:     An incentive?
      Q:     Yes. That would be pretty important to you?
      A:     My incent— Are you talking about my incentive for cooperation
             with the Government? My initial thing was I went to my attorney
             because of what he had asked me to do.

      Ms. Luxa [Government Attorney]:      Objection, Your Honor.
      Mr. Parrish [Defendant’s Attorney]: Objection and mistrial, Judge.
      The Court: Okay. If that’s a motion, it’s overruled.

Tyerman argues that “what he had asked m e to do” referred to the murder-for-hire,
and should result in a m istrial. The government believes that the reference to “he”
refers to the inmate’s attorney, not Tyerman. Both readings are plausible, but in any
event, such a vague, brief reference did notprejudice Tyerman. Without any context,
a reasonable juror could not surmise that “what he had asked me to do” is referencing
a murder-for-hire plot.

       “Motions for new trials are generally disfavored and will be granted only where
a serious miscarriage of ju stice may have occurred.” United States v. Fetters, 

, 656 (8th Cir. 2012), quoting United States v. Rice, 

, 893 (8th
Cir. 2006). Tyerman was not prejudiced by either exchange. The district court did
not abuse its discretion by denying his motions for mistrial and a new trial.



                                        -13-
                                         VI.

       Tyerman claims that the evidence at trial is insufficient to support the verdict.
This court reviews de novo the district court’s denial of a motion for acquittal based
on insufficiency of the evidence. United States v. Burrage, 

, 1023 (8th
Cir. 2012).

      On review, evidence is viewed mo st favorably to the verdict, giving it
      the benefit of all reasonable infere nces. Reversal is appropriate only
      where no reasonable jury could findall the elements beyond a reasonable
      doubt. This court does not weigh the credibility of the witnesses or the
      evidence. The jury ha s the sole responsibility to resolve conflicts or
      contradictions in testimony, and credibility determinations are resolved
      in favor of the verdict.

States v. Aldridge, 

, 715 (8th Cir. 2011).

      Tyerman challenges his felon-in- possession conviction, em phasizing
inconsistent testimony, witnesses’ inaccur acies, and witness credibility. None of
Tyerman’s assertions am ount to any m ore than credibility attacks. “The jury’s
credibility determinations are virtually unassailable on appeal.” United States v. Van
Nguyen, 

, 901 (8th Cir. 2010) (internal quotation marks omitted). The
jury heard all of the testim ony, and this court will not disturb their reasonable
judgment as to the credibility of the witnesses.

       Tyerman also challenges his conviction for possession of a stolen firearm by
arguing that he did not intend to perm anently deprive Yasunaga of the firearm ,
therefore it was not stolen. While intent to permanently deprive is an element of
common-law larceny, the term “stolen” is not necessarily limited to that definition in
federal criminal statutes. See United States v. Turley, 

, 411 (1957). This
court previously evaluated the “stolen” aspect of a stolen firearmunder the sentencing


                                         -14-
guidelines, determining that all wrongful takings satisfy the inquiry – regardless of
whether the taking meets the defi nition of common-law larceny. United States v.
Bates, 

, 1109 (8th Cir 2009);accord United States v. Walters, 

, 1218 (10th Cir. 2001);United States v. Jackson, 

, 749-50 (6th Cir.
2005). When evaluating the meaning of “stolen,” the Supreme Court requires that the
term be analyzed in the context in which it appears. 

. In
Bates, this court relied on a Third Circuit opinion in holding that the sentencing
guidelines required a broad meaning of “stolen” for firearm charges. 

, citing United States v. Mobley, 

, 454 (3d Cir. 1992). InMobley,
the court analyzed the crimes that specific guideline was adopted to punish: violations
of the Gun Control Act. 

. Specifically, and critically, the
analysis included the two statutes violated here: 18 U.S.C. § 922(g) and (j). 

found that these crimes, in conjunction with the sentencing guidelines, created
a regulatory scheme, whereby Congress intended to restrict the trade of st olen
firearms. 

Section 922(g) and (j)        are closely intertwined with the
sentencing guidelines concerning stolen firearms. This court’s determination that all
wrongful takings (regardless of com mon-law larceny) constitute “stolen” applies
equally to § 922(g) and (j).

       Tyerman contends that United States v. McBane, 

, 348 (3d Cir.
2005), establishes that the common-law definition of larceny is needed for a stolen-
firearm conviction. In McBane, however, the court did not directly address the
appropriate standard. Rather, it applied the common definition of larceny to the facts
of the case. The issue of the relevant standard was not before the court in McBane.
See 

.

      The evidence of Tyerman taking Yasunaga’s firearm and then hiding it in the
duct work of Yasunaga’s house is sufficient to sustain the conviction. The district
court did not err by denying the mo tion for acquittal based on insufficiency of the
evidence.

                                        -15-
                                         VII.

        Tyerman asserts that the district court erred by denying his motion for a new
trial based on the cumulative effect of the alleged errors. This court reviews the denial
of a motion for a new trialfor abuse of discretion. United States v. Samples, 

, 880 (8th Cir. 2006). When individual errors are insufficient on their own to
justify reversal, the cum ulative effect re quires reversal only if they deprive the
defendant of constitutional rights. United States v. Riddle, 

, 998 (8th
Cir. 1999). None of the alleged errors, however, were errors. The district court did
not abuse its discretion by denying Tyerman’s motion for a new trial.

                                         VIII.

      Tyerman says that the district courterred by applying a sentencing enhancement
for obstruction of justice due to an atte mpted escape. This court reviews the
application of sentencing guidelines de novo, and the factual findings for clear error.
United States v. Waller, 

, 957 (8th Cir. 2012) (per curiam).

       Tyerman argues that there was no attemptbecause he did not take a substantial
step toward an escape. “Attempt requires an intent to commit the predicate offense
and conduct that is a substantial step towards the crime’s commission.” United States
v. Shinn, 

, 931 (8th Cir. 2012). The Marshal’s testim ony satisfies the
intent requirement, because Tyerman disclosed to other inmates his plan to escape.
The remaining question is whether Tyerm an took a substantial step toward the
commission of an escape. “A defendant ta kes a ‘substantial step’ when he takes
actions ‘necessary to the consummation of the crime that were of such a nature that
a reasonable observer, viewing the actions in context could conclude that the actions
were undertaken in accordance with a de sign to commit the actual offense.’” 

States v. Young, 

, 743 (8th Ci r. 2010). A reasonable



                                         -16-
observer would view the creation of handcuff keys (and practice using them) as “in
accordance with a design” to escape.

       The district court did not err by applying a two-level adjustm
                                                                    ent for obstruction
of justice based on the attempted escape.

                                    *******

      The judgment of the district court is affirmed.
                     ______________________________




                                         -17-