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U.S. v Morgan

Case No. 12-1408 (C.A. 10, Apr. 9, 2014)

Tracy Morgan, Killiu Ford, and Augustus Sanford (the “Defendants”) were indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap, and possession of a firearm during a crime of violence. Each defendant brought a separate appeal, raising overlapping but not identical issues. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm as to each defendant.


A. Factual History

In August 2009, Mr. Morgan and his friend, Marvin Tabor, plotted to kidnap and rob Mario Armendariz. Pursuant to their plan, Mr. Morgan attached a GPS tracking device to Mr. Armendariz’s car while Mr. Armendariz was visiting Mr. Tabor’s home. Mr. Tabor then tracked Mr. Armendariz’s location on the Internet using Google Maps, enabling Mr. Morgan and Mr. Ford to follow Mr. Armendariz in their vehicle.

Also in late summer 2009, Mr. Tabor’s brother-in-law, Mr. Sanford, persuaded a police officer’s minor child to steal four weapons and parts of a police uniform— including cargo pants, a black police shirt, and an orange reflective vest—from his father in exchange for two ounces of marijuana. Mr. Sanford also painted his Chevrolet Tahoe black.

Around 11:00 p.m. on September 22, 2009, the Defendants and Mr. Tabor met at Mr. Tabor’s house. Mr. Sanford wore the stolen police gear. The Defendants then departed to locate Mr. Armendariz. Mr. Tabor remained at his home and tracked Mr. Armendariz using the GPS device and Google Maps, speaking with the Defendants on a cell phone to update them with Mr. Armendariz’s location.



Judge(s): Scott Matheson
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Communications , Constitutional Law , Criminal Justice , Government / Politics , International , Property
Circuit Court Judge(s)
Robert Bacharach
Jerome Holmes
Scott Matheson

Appellant Lawyer(s) Appellant Law Firm(s)
Ronald Fujino
Jeffrey Pagliuca Haddon Morgan and Foreman PC
Richard Hostetler Law Office of Richard A. Hostetler

Appellee Lawyer(s) Appellee Law Firm(s)
Paul Farley U.S. Department of Justice
John Walsh U.S. Department of Justice



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black. “attempt[ed] to undo the wrong that has been done in one of two ways”: (1) “give conspirators finished dividing up the proceeds. matter of statutory interpretation, that intrastate telephone use constitutes the use of a use of instrumentalities of interstate commerce to commit the offense of kidnapping. the omitted), i would affirm the district court’s judgment because any error did not alleged error on this score was “clear or obvious under current law,” united rule 404(b)(1) prohibits the admission of “[e]vidence of a crime, wrong, or of evidence 801(d)(2)(e), an intercepted phone call during which mr. patterson, mr. -3- -30- g. cumulative error the third prong of our plain-error test. in an unpublished opinion. see supra note 11. no circuit has addressed gps devices. tracy morgan, a/k/a tre dog, under 18 years of age), the jury should also be required to find that cell phones, the concern necessary elements the prosecution must prove. keeping these questions from call were speaking on a private phone line to co-conspirators. no law enforcement we conclude the district court did not abuse its discretion by denying mr. -18- -17- above.18 jury to not consider the stricken statements. no witnesses were questioned about those potentially improper rule 404(b) evidence. thus, rather than affirming under the the dissociation known to the organization.” id. without deciding he raised the mistrial issue when he said no limiting instruction could cir. 1993) (“in general, mere narratives between coconspirators or narrative declarations conclude mr. sanford’s and mr. ford’s as-applied commerce clause challenge fails. as nature of the offense of conviction, rather than the particular facts relating to [the the phone call about mr. morgan’s involvement, and mr. morgan’s participation in the attempted use, or threatened use of physical force against the person or property of tabor, mr. ford, and mr. morgan (though only briefly) spoke about dividing the that is plain, which (3) affects substantial rights, and which (4) seriously affects the furtherance of a crime of violence in violation of 18 u.s.c. § 924(c)(1)—the district defendants objected at trial to admission of the phone call. after the phone call was defendants, against whom the evidence was much stronger. “where [admitted] evidence is later ruled inadmissible, a cautionary instruction is and not any co-defendant is not sufficient to cure a bruton error. see united states v. robbing mr. armendariz was to obtain money and divide it among the co-conspirators. interstate commerce. the court’s choice to decide this issue rather than asking the jury to “[a] cautionary instruction is ordinarily sufficient to cure any alleged prejudice to c. statements of co-conspirators flores-armendariz home. mr. ford and mr. morgan3 -25- -28- mr. morgan relies on maestas, where we reversed the denial of a mistrial when at as evident from the call and other evidence, the central purpose of kidnapping and internet, and gps devices are instrumentalities of interstate commerce as a matter of fact. this issue as to him. see renteria, 720 f.3d at 1251. furthermore, any prejudice was ameliorated because mr. morgan’s counsel in addition to the internet, review. see united states v. anaya, 727 f.3d 1043, 1059 (10th cir. 2013) (“[the although the appeals were not formally consolidated, the government filed only violated rule 801(d)(2)(e) and the sixth amendment. as explained below, we review alleged the defendants “use[d] a means, facility, and instrumentality of interstate and “statements in furtherance of a conspiracy” are by nature not testimonial). one answer brief, and the cases were argued consecutively at oral argument. -27- because kidnapping and conspiracy to kidnap are crimes of violence as a matter of -12- john f. walsh, united states attorney, and paul farley, assistant united states sanford. these arguments fail because there was ample evidence placing him as a continued . . . investigation or prosecution of a crime. see smalls, 605 f.3d at 777. the parties on the arguments also fail because the evidence against mr. morgan was overwhelming. mr. objection to the evidence in question does not “squarely present” a mistrial 1248 (10th cir. 2000) (quotations omitted). wl 3522528 (s.d. ala. aug. 14, 2012) (facial challenge); united states v. jacques, no. this comparison is inapt. a victim’s age is a question of fact under the circumstances of . . . the court should have granted a mistrial sua sponte. we disagree.”); united united states v. willoughby, 724 f.3d 229, 240 (6th cir. 2014); united states v. mandel, (facial); united states v. ochoa, no. 8–cr–1980, 2009 wl 3878520 (d.n.m. nov. 12, share. mr. morgan then joined the call and stated he would come to mr. tabor’s house in make the identification. sixth, mr. sanford alleges the district court erred in denying his 1 2. sixth amendment bruton claim mr. morgan and mr. sanford argue this issue in their opening briefs. mr. ford later that night or early the next morning, mr. ford and mr. sanford looked for 15 foundational predicates before admitting the phone call. the defendants again purpose of the call was to discuss future actions, including mr. morgan’s suggestion to unconstitutionally applied here.5 fairness, integrity, or public reputation of judicial proceedings.” id. we find no plain phone call bolsters that conclusion. review the district court’s denial of a mistrial motion for abuse of discretion). penalties under the safety appliance act for operating defective railroad cars in intrastate considering committed the crime of kidnapping or conspiracy to kidnap, which are v. randall, 661 f.3d 1291, 1294-95 (2011). the second method “requires more than any of the men who were at your house in the courtroom today? taylor, 514 f.3d at 1096 (applying plain-error review when the defendant “did -15- the district court was clearly obliged . . . to grant a mistrial sua sponte”); united respond to such implied arguments. that would be error, for “the court cannot question here was posed only once. she did not identify anyone. the district court entirely inactive after joining it.”). u.s.c. § 924(c). see united states v. rodriguez-moreno, 526 u.s. 275, 281 (1999). the device to mr. armendariz’s car while mr. armendariz was visiting mr. tabor’s home. separate appeal, raising overlapping but not identical issues. exercising jurisdiction from intrastate activities.” id.7 necessity, before the spoils are divided among the miscreants.”).15 all three indication ms. flores could identify a defendant. mr. sanford then moved for mistrial. devices, and the internet are “instrumentalities of interstate commerce” and (2) whether nearly identical language to § 924(c)(3)—“requires us to look to the elements and the mr. -33- united states of america, the defendant has the burden to show withdrawal by proving he or she evidence for each individual defendant, and juries are presumed to follow instructions. and possession of a firearm during a crime of violence. each defendant brought a in sum, i fully join in the panel’s ultimate decision to affirm. however, previously noted, we need not and do not address their facial challenge. see colo. right no argument as to how this evidence affects him. we do not consider this issue as to mr. interstate or foreign commerce in committing or in furtherance of the commission of the davis, 766 f.2d at 1458. commerce clause because the charged criminal activity all occurred intrastate. we instead, mr. sanford and referencing a crime mr. morgan allegedly committed for which mr. morgan was error must be clear or obvious under well-settled law.” united states v. trujillo- the district court next heard argument on mr. sanford’s motion for mistrial, which -9- a: yes. huerta, 403 f.3d 727, 732 (10th cir. 2005) (en banc). mr. ford must show “(1) error, (2) the district court did not rule at that time. as noted above, all foreign commerce, those being cellular telephone(s), the internet[,] and a global purpose of the conspiracy at the time of the phone call. although mr. morgan left the other grounds as recognized in united states v. bagby, 696 f.3d 1074, 1081 (10th cir. on appeal. although some elements of the government’s case implicated only the other played for the jury in which mr. ford stated that ms. flores saw mr. sanford’s and mr. grounds by cent. bank of denver, n.a. v. first interstate bank of denver, n.a., 511 u.s. prejudice at the end of the government’s case-in-chief. the court instructed the jury to pick up mr. sanford and mr. ford. the driver then drove away from the home, stopped the other defendants. these arguments do not apply to mr. ford, and we do not consider ford roa, vol. ii at 187. statute. second, mr. ford challenges the district court’s jury instructions. third, the 2013) (facial and as-applied challenges); united states v. taylor, no. 12–0056-ws, 2012 continued to argue that none of them had asked ms. flores to identify the defendants, to conceal the crimes because the original purpose had been accomplished); krulewitch v. activities satisfy the ‘in furtherance of’ requirement.” id. at 515 (quotations omitted). acquittal in a separate trial, or by a complaint of the ‘spill-over’ effect of damaging mr. sanford’s argument he personally did not use an instrumentality is united states v. renteria, 720 f.3d 1245, 1251 (10th cir. 2013). in this instance, f. severance 1984). otherwise would allow one jury, for example, to find that the internet is an circuit precedent and courts from other jurisdictions have decided similarly. see united erred by not submitting to the jury two issues: (1) whether cell phones, gps tracking exhibit 14a at trial. a transcript of the phone call was admitted as exhibit 14b. mr. sanford and mr. morgan argue the district court erred by denying a mistrial congress enacted the federal kidnapping act in 1932 to outlaw interstate abuse-of-discretion standard, i would review this claim for plain error and affirm law enforcement intercepted and recorded this phone call as part of an ongoing mr. morgan asserts this problem was compounded by a recorded phone call i. background because mr. ford did not object at trial to the jury instructions or propose morgan joined the phone call for a brief moment and told the others he would arrive at firm conviction that a mistake has been committed.” easley v. cromartie, 532 u.s. 234, a. factual history1 24 n[word] was supposed to come back in with ten. this n[word] don't come court must determine “(1) by a preponderance of the evidence, a conspiracy existed, (2) record. you all had a shootout and some more shit the other time and you all shot straight not an exploration of the underlying facts. see leocal v. ashcroft, 543 u.s. 1, 7 (2004) states v. keeling, 235 f.3d 533, 537 (10th cir. 2000) (holding that an element “must be -14- instrumentality of interstate . . . commerce in committing or in furtherance of the instructed the jury not to consider them.21 outcome of the trial mandates reversal.” united states v. anaya, 727 f.3d 1043, 1060-61 motion after ms. flores stated she could identify one of the perpetrators. the district in exchange for two ounces of marijuana. mr. sanford also painted his chevrolet tahoe mr. sanford failed to meet his heavy burden both before the district court and now conspirators met again to redistribute proceeds. review issues for the first time on appeal, mr. morgan has waived this argument. see ms. flores left the house looking for help. she saw a black sport utility vehicle substantial risk of physical force”); see also united states v. patino, 962 f.2d 263, 267 continued . . . instrumentalities of interstate commerce and whether kidnapping is a crime of violence. the second statement by mr. patterson is virtually incomprehensible: “you all although we are the first circuit court to address a constitutional challenge to the -5- e. ms. flores’s identification testimony united states v. knuckles, 581 f.2d 305, 313 (2d cir. 1978) (“[i]t is fair to say that where 5 -6- for appellant tracy morgan. § 924(c) crime of violence. see united states v. brown, 200 f.3d 700, 705-06 (10th cir. motion for a mistrial . . . , the district court has not exercised its discretion, and 4 6 13 and that the government’s question broached an entirely new topic in a manner that was that he did not commit any crime and therefore could not be identified as one of the u.s.c. § 924(c). over here. that was the whole lot going on right there.” id. at 682-83. rights were affected. in other words, i would conclude that his claim fails under we review the district court’s denial of the mistrial motion for abuse of discretion. at the district court, all three defendants objected on rule 801(d)(2)(e) and defendants were indicted together and slated for a joint trial. before trial, mr. sanford judge”); see also united states v. giordano, 442 f.3d 30, 40 (2d cir. 2006) (holding, as a proceeds, which furthered their purpose to kidnap for money. after the call, the co- congressional power to regulate the channels and instrumentalities of commerce includes until ms. flores testified, she had not been able to under the plain-error standard, even assuming arguendo that the court’s v. williamson, 53 f.3d 1500, 1517 (10th cir. 1995) (quotations omitted). clear error ______________________________________ a given case. denying the motion for mistrial and opting instead for a curative instruction. ms. flores’s in particular, i write separately to express my view that mr. morgan forfeited his the indictment lists the defendants’ multiple meetings to divide the proceeds— based on ms. flores’s testimony.23 but mr. ford did not raise this question in his opening brief. instead, he attempted to join real prejudice to his case.” united states v. mcconnell, 749 f.2d 1441, 1444 (10th cir. here correctly instructed the jury to determine whether the defendants used an the entirety of the other defendants’ briefs without explaining how the arguments apply 12 testimonial. ford roa, vol. ii at 42. we agree. 3 -2- here, the district court gave the jury a cautionary instruction and redacted the and, with one exception, endorse its reasoning. the exception involves part ii.d. interstate commerce in committing or in furtherance of the kidnapping.” ford roa, vol. official or any other third party participated in the conversation.17 tabor’s home to discuss the kidnapping and robbery with mr. tabor and mr. patterson. the post-kidnapping phone call based on a violation of federal rule of evidence 404(b). under rule 801(d)(2)(e), co-conspirators’ statements that would otherwise be states v. goode, 483 f.3d 676, 681 (10th cir. 2007) (internal quotation marks conversation was admitted as exhibit 14b. 18 and the jury “may not consider or use this stricken material as evidence or for any other statement is a “formal declaration made by the declarant that, when objectively error. 8 matheson, circuit judge. evidence at trial established the defendants were present. ______________________________________ the majority correctly notes that we generally review the refusal to grant a d. rule 404(b) evidence and mistrial based on the language of the federal kidnapping statute and the indictment, this paid $10,000 but only returned with $200 to share. id. tabor and mr. patterson testified about mr. morgan’s involvement. mr. ford spoke on first, mr. sanford and mr. ford challenge the constitutionality of the federal kidnapping the district court instructed the jury that cell phones and gps tracking devices are events from the crime to his fellow conspirators, who in turn made inculpatory statements we have decided the internet is an instrumentality of interstate commerce. see mr. ford does not directly challenge the district court’s determination that cell kidnapping is a “crime of violence” under 18 u.s.c. § 924(c)(1), which imposes a witness not to say it. see 341 f.2d at 496. here, the tape was played once for the jury. 2007); united states v. giordano, 442 f.3d 30, 40 (2d cir. 2006); united states v. morgan: a conspiracy continues until its central purpose has been attained. see grunewald mr. ford argue the indictment’s reliance on their use of any of these devices violates the cell phone to update them with mr. armendariz’s location. terrazas, 405 f.3d 814, 818 (10th cir. 2005) (quotations omitted). as for cell phones, all three defendants argue the district court erred in admitting, under federal rule kidnapping statute, 18 u.s.c. § 1201(a)(1), as amended in 2006; and (2) the statute was the jury should have been given the opportunity to determine these matters because they co-conspirators—defendants ford, sanford, and morgan—had already met to share the not “disregard it in their consideration of the case” despite cautionary instructions. -22- morgan’s right to a fair trial or warrant the “drastic action of declaring a mistrial.” 22 not satisfied the plain-error standard. occurring during the pendency of the conspiracy.” united states v. davis, 766 f.2d measures. states v. crawford, 707 f.2d 447, 450 (10th cir. 1983) (“[i]n the absence of a occurs outside the flow of commerce and is purely local in nature.”) over effect of damaging evidence about the other defendants prejudiced him. this appeal from the united states district court only challenges the district court’s not declaring a mistrial. defendants’] crime”). accordingly, whether kidnapping is a crime of violence turns not gabaldon, 91 f.3d at 95 (quotations omitted). the district court’s refusal to declare a 647 f.3d 710, 716 (7th cir. 2011); united states v. evans, 476 f.3d 1176, 1180 (11th cir. because bruton does not apply to non-testimonial statements, see id. at 768 n.2, a grand jury indicted the defendants on two counts of kidnapping in violation of (11th cir. 1995) (distribution of proceeds is in furtherance of conspiracy); united states the power to prohibit their use for harmful purposes, even if the targeted harm itself admitted, mr. morgan complained the call included two statements that should have been v. turner, 871 f.2d 1574, 1581 (11th cir. 1989) (admitting under rule 801(d)(2)(e) proceeds of the crime. they contend the statements were not made in the course of or in ______________________________________ united states v. gabaldon, 91 f.3d 91, 94 (10th cir. 1996). case, although admonished to do so, a mistrial should be ordered.” maestas v. united commerce. indeed, the lopez court said “congress is empowered to regulate and protect holmes, circuit judge, concurring. defendants in an indictment, an information, or a consolidation for trial appears to this trial and may not be used as such by you, the jury. see united states v. ramos, no. 12 cr. 556 (lts), 2013 wl 1932110 (s.d.n.y. may 8, -16- instrumentality of interstate commerce—a railroad—to charge discriminatory intrastate transcript the jury had in deliberations was redacted, and the district court instructed the is unlikely to cure the prejudicial effect of an error.” peveto, 881 f.2d at 859. we look that we have found to be harmless and determine whether their cumulative effect on the states v. owens, 70 f.3d 1118, 1123 (10th cir. 1995). the defendants contest the third past events potentially relevant to later criminal prosecution.” id. at 777-78 (quoting -35- request; and (2) in this case, mr. morgan forfeited his 404(b)-mistrial challenge in in my opinion, our precedent makes clear that (1) mounting a vague armendariz to lie on the ground. one of the men was wearing a reflective police vest. the internet, or a gps device to accomplish the abductions.6 case falls in the second category, which includes regulation aimed at local, in-state including cargo pants, a black police shirt, and an orange reflective vest—from his father april 9, 2014 cir. 2008). renne v. geary, 501 u.s. 312, 324 (1991) (endorsing the practice of (1) deciding an as- of law. see united states v. munro, 394 f.3d 865, 870 (10th cir. 2005) (calling the proceeds. on the call, mr. ford complained that mr. morgan had taken more than his the conspiracy such that a jury could conclude that it was reasonably calculated to make under its commerce power”: (1) “use of the channels of interstate commerce,” (2) “the -23- 1408), and the majority seems willing to entertain this possibility. see majority purpose during the trial. and the written transcript will be redacted to exclude any (10th cir. 2008). as i read our precedent, there can be no abuse of discretion in committing the crime. see pierce, 70 m.j. at 394. permissible choice in the circumstances.” united states v. chanthadara, 230 f.3d 1237, refers to, or what the “shootout” or “some more shit the other time” was, or what “shot mistrial was not an abuse of discretion. we have held that conspiracy to commit a federal crime of violence also is a but we have not done so in a published opinion, nor have we or any other circuit armendariz’s home. the tahoe drove away and parked in a different location. mr. ford recounted publish maestas, 341 f.2d at 496. “[m]otions for mistrial . . . call for an examination of the dynalectric, co., 859 f.2d 1559 (11th cir. 1988). dynalectric was a bid-rigging case mistrial is only appropriate where a cautionary instruction is unlikely to cure the instruction would ameliorate any prejudice. the court said it could better evaluate (defining “crime of violence” using similar language to § 924(c)(3)). furtherance of the conspiracy. although part of the call recounted past events, the -13- richard a. hostetler, law office of richard a. hostetler, denver, colorado, appearing and issues presented at such a late stage are waived.”). the instrumentalities of interstate commerce . . . even though the threat may come only conversations of co-conspirators about how proceeds of theft would be distributed); defendants all argue the district court violated federal rule of evidence 801(d)(2)(e) the record indicates that mr. morgan never gave the district court an opportunity b. procedural history the supreme court has recognized kidnapping as a crime of violence under 18 two of the men zip-tied mr. armendariz’s arms and legs together, covered his to “establish or prove past events potentially relevant to later criminal prosecution.” id. the crime. the police officer’s son, from whom mr. sanford procured the police gear, statements offered under rule 801(d)(2)(e) were made [in] the course of and in defendants knew of the wiretap. see united states v. ramirez, 479 f.3d 1229, 1249 i rehearse or reiterate that any verdict you return must be based on the davis v. washington, 547 u.s. 813, 822 (2006)). prejudice a defendant or the government, the court may order separate trials of counts, regarding part ii.d—addressing the 404(b)-mistrial challenge—i would affirm on 3 elisabeth a. shumaker the district court was not clearly obligated to grant a mistrial sua sponte.”); clause protection because it deprives the right to cross-examine the declarant. see 391 and the evidence proved that defendants used an instrumentality of interstate commerce excluded under rule 404(b) because they implicated him in prior criminal activity.20 review “ask[s] whether, on the entire evidence, [the court] is left with the definite and positioning system, in committing and in furtherance of the commission of the offense.” the co-conspirators on the call discussed concerns about an unfair distribution of the the course of and in furtherance of the conspiracy.16 mr. crimes of violence.” ford roa, vol. i at 1418. § 1201(c); and one count of use of a firearm during a crime of violence in violation of 18 several miles away, and dropped off mr. armendariz on the side of the road. defendant] did not request a mistrial. we therefore review the district court’s enabling mr. morgan and mr. ford to follow mr. armendariz in their vehicle. that the conspiracy does not end until all the money has been distributed, which is district court overruled. not abuse its discretion in failing to order a mistrial. v. the statements were made in the course of and in furtherance of the conspiracy, thereby “an agreement to accomplish the statutory elements of carjacking necessarily involves a continued . . . testimony was one short moment in a seven-day trial. again, unlike in maestas, the under these circumstances, jury instruction 11 can hardly be considered plainly tracy morgan, killiu ford, and augustus sanford (the “defendants”) were we address this issue only as to mr. sanford. mr. ford also moved for sanford’s motion for severance. 19 instrumentalities of interstate commerce. mr. ford contends the jury must make those clear to whom mr. ford is referring, who or what cortino is, or what “got” means. see united states v. ballinger, 395 f.3d 1218, 1226 (11th cir. 2005) (“plainly, the defendants do not appeal the jury’s determination that they used a cell phone, court instructed that to convict, the jury must find “the defendant whose case you are -8- joined the phone call about the proceeds to say he was coming to mr. tabor’s house, and the defendants also argue the phone call is inadmissible because it is a mere five other circuits have held they are instrumentalities of commerce, and we have done so mr. morgan put a gun to the three-year-old daughter’s head, and ms. flores then this argument fails for the same reasons we conclude the phone call was made in but a few pages address the commerce clause issue, aplt. ford br. at 28-32, and he (d.c. no. 1:11-cr-00303-reb-1; 1:11-cr-00303-reb-2; 1:11-cr-00303-reb-3) the jury, he says, violated his sixth amendment right to a fair jury trial. he cites united questioned mr. armendariz about where he kept his money while an unknown co- phone call, so the call could not have been in the course of the conspiracy. but the record crime of violence. u.s. sentencing guidelines manual § 4b1.2(a) & cmt. n.1 (2013) the person acted in accordance with the character.” to see if the evidence “will create so strong an impression” on the jurors that they could to life comm., 498 f.3d at 1155-56.9 for mistrial after ms. flores testified she could identify one of the perpetrators but did not disagree based on supreme court precedent. “we review the district court's denial of a motion to sever for an abuse of indicted and tried together. a jury convicted them of kidnapping, conspiracy to kidnap, 234 u.s. 342 (1914), as an example. see 514 u.s. at 558. in shreveport, the court consistent with this case. apart from dynalectric, our own precedent is controlling. see also mentioned southern railway co. v. united states, 222 u.s. 20 (1911), which upheld during the call. no one referenced any pending or future prosecution. the record does rigorous cross-examination of witnesses and two limiting instructions regarding this is not a case where the statements created so “strong an impression on the minds of disregard the question and ms. flores’s answer and not consider them as evidence: of the 21 overt acts in furtherance of the conspiracy. ford roa, vol. i at 21. based on made “during and in furtherance of the conspiracy.” before admitting such evidence, the the district court did not violate the defendants’ sixth amendment rights by admitting sixth amendment issue de novo. we review the as-applied challenge de novo. see 2009) (as-applied, did not reach facial). started at 3:19 a.m. on september 23, 2009, a few hours mr. ford challenges jury instructions 11 and 13 and argues the trial court plainly 120 stat. 616 (codified at 18 u.s.c. § 1201(a)(1)). states, 341 f.2d 493, 496 (10th cir. 1965). prejudicial impact of an error or errors when viewed in the context of an entire case.” curative instruction”); id. at 1100 (finding “no authority for the proposition that flores refused to tell them. the jurors that they will be unable to disregard it in their consideration of the case.” id. receipt of monies over time. but dynalectric can reasonably stand for the proposition government] and the answer of ms. flores to that last question have been instructions regarding whether a cell phone, the internet, and a gps device are § 1201(a)(1) fits lopez’s second category and is constitutional under commerce clause. mr. ford attempts to join this issue as part of the blanket statement in his brief defense’s objection [to an alleged error]. [the defendant] now contends that take on the responsibility of serving as the litigant’s attorney in constructing united states v. qayyum, 451 f.3d 1214, 1218 (10th cir. 2006) (quotations omitted). discretion.” united states v. hall, 473 f.3d 1295, 1302 (10th cir. 2007). alternate jury instructions, we review for plain error. see united states v. gonzalez- 20 weight of the evidence pointing to . . . guilt.”). erroneous under well-settled law. use of an instrumentality to engage in kidnapping.8 kerbs v. fall river indus., 502 f.2d 731, 738 (10th cir. 1974), abrogated on other 2012); see also united states v. crawford, 541 u.s. 36, 56 (2004) (holding that in united states v. lopez, 514 u.s. 549 (1995), chief justice rehnquist, writing -21- applied challenge first, thus (2) obviating the need to address a facial challenge); colo. supreme court in shreveport upheld a federal law that prohibited the use of an also identified mr. sanford. in the face of this evidence, mr. sanford fails to show how had excluded a photo of mr. morgan from a photo array. ford roa, vol. ii at 164-72. anything that i have stricken, which must be disregarded entirely. 18 u.s.c. § 924(c)(1) prohibits the use or carrying of a firearm “during and in redistributed the proceeds from the kidnapping and robbery. see weeks v. angelone, 528 u.s. 225, 234 (2000). mr. sanford asserts only that the spill- in the course of and in furtherance of the conspiracy was not clearly erroneous, and that advised the jury to disregard the statement, and juries are presumed to follow curative 1452, 1458 (10th cir. 1985); see also united states v. knowles, 66 f.3d 1146, 1156-57 in the first statement, mr. ford recalled the time they “got cortino” and “the incorporates by reference his co-defendants’ opening briefs, including mr. sanford’s another, or . . . that by its nature, involves a substantial risk that physical force against the he contends -24- arguments.” garrett v. selby connor maddux & janer, 425 f.3d 836, 840 (10th admission of the phone call under rule 801(d)(2)(e) was not an abuse of discretion. unsuccessfully objected on both grounds just before jury selection. the district court said 16 tracking devices are instrumentalities of interstate commerce. ford roa, vol. i at 1414. 2:08–cr–117, 2011 wl 1706765 (d. vt. may 4, 2011) (facial and as-applied); united the recorded phone call was admitted as exhibit 14a. a transcript of this the uncompleted identification was so prejudicial as to necessitate a mistrial. of cross-examination. the district court dismissed the jury, and all three defense counsel based on our review of the record, we do not think ms. flores’s uncompleted mr. tabor then tracked mr. armendariz’s location on the internet using google maps, making a reliable judgment about guilt or innocence.” id. “inasmuch as severance is a in overruling the defendants’ confrontation clause objection to exhibit 14a, the other act . . . to prove a person’s character in order to show that on a particular occasion problem”). however, i believe the more prudent course is not to countenance, 1. jury instruction 11—instrumentality of interstate commerce the defendants raise seven issues. only one applies to all three defendants. 164 (1994). other circuits have held that cell phones are instrumentalities. see, e.g., discretion as to both rulings because he suffered prejudice from being tried with the other states v. devous, 764 f.2d 1349, 1356 (10th cir. 1985) (“the court sustained the q: ms. flores, i know you’ve gotten upset a few times. do you recognize narrative of past events. they cite united states v. roberts, 14 f.3d 502, 514-15 (10th meet again. indeed, roberts works against them: “statements made to induce enlistment 21 ms. flores’s uncompleted identification did not impair mr. sanford’s or mr. see united states v. smalls, 605 f.3d 765, 768 n.2 (10th cir. 2010). a testimonial the house, but after realizing mr. morgan had already left with the money, they also was improper because the government had not provided them during discovery any 482 f.3d 1209, 1218 (10th cir. 2007). attempts to join this issue as part of his blanket statement in his brief joining the other that he could not have made such a showing. mr. morgan also benefitted from so at trial. on cross-examination by mr. morgan’s counsel, ms. flores confirmed she ford roa, vol. ii at 681-82. mr. morgan’s counsel explained that mr. ford was instrumentalities of interstate commerce,” and (3) “activities having a substantial relation 123 (1968).13 10 the record, we cannot hold the district court clearly erred in finding the call was made in sufficient. the statements were street slang, vague, and a small fraction of a 42-minute jury would be reminded of ms. flores’s uncompleted identification and speculate as to element. satisfying rule 801(d)(2)(e), and admitting them would not violate the sixth amendment failure to grant a mistrial sua sponte . . . for plain error . . . [and conclude that] and the wiretap recorded a phone call in which mr. ford discussed mr. sanford’s role in reference to this stricken material.” ford roa, vol. ii at 714. instrumentality of interstate commerce, and another jury to find in a substantially similar conspirators, to reassure members of a conspiracy's continued existence, to allay a for appellant augustus sanford. couple’s two minor children; one count of conspiracy to kidnap in violation of 18 u.s.c. mr. morgan argues the district court erred by failing to order a mistrial after the unlike in dynalectric, the conspiracy to kidnap here did not involve a plan for future to him. generally, “[t]his is problematic because it requires the court to sift through the states v. augustin, no. 1:09–cr–187, 2010 wl 2639966 (e.d. tenn. june 28, 2010) kidnapping in response to the widely publicized abduction of aviator charles lindbergh’s also in late summer 2009, mr. tabor’s brother-in-law, mr. sanford, persuaded a minds of the jurors that they will be unable to disregard it in their consideration of the in jury instruction 13—the instruction on count 6 for using a firearm in before or after the district court acted” but “[a]ssuming without deciding he raised 12-1408, 12-1442, 13-1032; united states v. morgan, et al. call based on both rule 801(d)(2)(e) and the sixth amendment. the district court which of these two men ms. flores had intended to identify in court. police officer’s minor child to steal four weapons and parts of a police uniform— the district court instructed the jury that cell phones, the internet, and gps united states, 336 u.s. 440, 442-43 (1949) (same). “to determine the scope of the among coconspirators meet the ‘in furtherance’ requirement.”). federal prosecution for such conduct comports with the commerce clause. we include[] a cellphone, the internet[,] and a global positioning system ‘gps’ tracker.” id. that ms. flores could identify one of the defendants but were left to speculate which 2 district court said “the sixth amendment applies only to statements that are testimonial” iii. conclusion nonetheless, mr. morgan contends that “[he] implied that there was a court acted on the rule 404(b) concern suggests he forfeited this issue. assuming extensively cross-examined ms. flores about her previous attempts to identify mr. therefore it is meaningless to look for an abuse of discretion.” (quoting united the record is not clear how mr. morgan travelled to or from the flores- statement joining the other briefs. he does not provide any arguments on appeal as to unduly prejudicial. the defendants also argued ms. flores’s identification testimony patterson, mr. tabor’s stepbrother, was also a co-conspirator who testified for the as discussed below, we affirm that instruction on plain error review. him of his right to a fair trial. “to analyze cumulative error, we aggregate all the errors on redirect, the government asked: the government moved to withdraw the question. the appealed issues. law, the only fact question left for the jury is whether the defendants used them. to hold rail rates. see shreveport, 234 u.s. at 351. here we have a federal law that prohibits the kidnapping in violation of 18 u.s.c. § 1201(a)(1)—stated the jury must find that “the distributed. id. at 1563. the defendants argue their case is distinguishable because, different grounds, concluding that mr. morgan forfeited this challenge and has 18 u.s.c. § 1201(a)(1) prohibits a person from using an “instrumentality of that the lower court has made a clear error of judgment or exceeded the bounds of assertion is not sufficient to support the requisite showing of prejudice. see iiland, 254 mr. morgan and found him at a taco bell. they divided the money mr. morgan took killiu ford, a/k/a caveman, the statements, in short, were not testimonial. as noted below, even if mr. morgan preserved this issue for appeal, we affirm s.ct. 714, 721 (2013) (holding it is an “established proposition that a defendant's departed to locate mr. armendariz. mr. tabor remained at his home and tracked mr. review de novo any alleged sixth amendment bruton errors. see united states v. nash, kemp, 478 f.3d 1236, 1250 (10th cir. 2007) (“it is our general rule . . . that arguments we conclude that the district court’s factual determination that the call was made wiretap in a separate drug investigation. the recorded phone call was admitted as briefs the phone call’s admission violated rule 801(d)(2)(e) and the sixth amendment. united states v. mora, 293 f.3d 1213, 1216 (10th cir. 2002). clerk of court hill, 901 f.2d 880, 883 (10th cir. 1990). this factual history is based on evidence presented at trial. for the district of colorado identification testimony was so prejudicial that the district court abused its discretion by the defendant and declaring a mistrial is only appropriate where a cautionary instruction hearsay may be introduced as evidence against a defendant co-conspirator if they were severance at the district court, and he now attempts to join this issue as part of his blanket tenth circuit mr. morgan, by contrast, did not raise this issue in his opening brief or at oral demonstrate his continued participation in the conspiracy. the defendants argue on appeal the district court’s admission of the phone call perpetrator undermined his defense because the jury could speculate ms. flores saw mr. plaintiff - appellee, motion for a mistrial,” oral argument at 14:55, united states v. morgan (no. 12- not support a conclusion that the primary purpose of the statements in the phone call was to interstate commerce.” id. at 558-59. briefs, but he does not make any argument on appeal about why he was prejudiced. mr. whether a crime fits the § 924(c) definition of a “crime of violence” is a question [or her] coconspirators in a manner that reasonably and effectively notifies the sixth amendment grounds. both mr. sanford and mr. morgan argue in their opening motion for severance. seventh, mr. morgan contends there was reversible cumulative nowhere in lopez or any other case has the supreme court limited congress’s appeal why this evidence was so prejudicial that the curative jury instruction was not unavailing because he was a member of the conspiracy. see smith v. united states, 133 “[w]hile the ultimate issue of the admission or exclusion of evidence is reviewed person or property of another may be used in the course of committing the offense.” (10th cir. 2001) (citations omitted). “rather, a defendant must show that he was from mr. armendariz’s home. -20- the indictment in this case charged f.3d at 1270. told them the money was under her daughter’s dresser. mr. morgan retrieved $30,000 matter of discretion and not of right, the defendant must bear a heavy burden of showing straight over here” means. bruton holds that admission of a non-testifying co-defendant’s confession 2006 amendment, every district court to consider the issue has held 18 u.s.c. all three defendants immediately objected to this questioning as beyond the scope defendants - appellants. membership in the conspiracy, and his responsibility for its acts, endures even if he is the defendants argue the district court erred in how it applied united states v. the character of the testimony is such that it will create so strong an impression on the fifth, mr. sanford and mr. morgan argue the district court erred in denying their motions deprived of his right to a fair trial.” united states v. zapata, 546 f.3d 1179, 1191 (10th even tacitly, “implied-mistrial” arguments, lest in so doing, we suggest that kidnapping in violation of 18 u.s.c. §§ 1201(a)(1) and 3559(f)(2) for kidnapping the -10- at 1414. see peveto, 881 f.2d at 859. we reverse only if we have a “definite and firm conviction 9 18 u.s.c. § 3559(f)(2) (increasing mandatory minimum sentence for kidnapping those after the kidnapping and robbery, and lasted 42 minutes. before the call, several of the (10th cir. 2007) (holding statements of co-conspirators procured through a wiretap are 1999) (holding that a conspiracy to carjack is a crime of violence under § 924(c) because sever the defendants’ trials, or provide any other relief that justice requires.” the statements violated rule 404(b), ordered the statements stricken from the record, and united states v. martin, 18 f.3d 1515, 1518 (10th cir. 1994) (quotations omitted). the the district court did not clearly err in finding mr. morgan had not withdrawn mr. morgan’s failure to ask explicitly for a mistrial before or after the district met him there. the defendants the phone call at issue14 alleged conspiratorial agreement, the court is bound by the language of the indictment.” defendants who are indicted together.” zafiro v. united states, 506 u.s. 534, 537 (1993). commerce clause arguments, id. at 33. appearing in mr. sanford’s brief. because mr. morgan raises this issue for the first time indicates otherwise. mr. sanford argues this evidence prejudiced him because his main defense was government at trial. mr. patterson’s exact involvement in the crime is unclear from the arguments as to why ms. flores’s identifying statement prejudiced him specifically. we -4- armendariz using the gps device and google maps, speaking with the defendants on a requisite showing of prejudice “is not made by a complaint that one defendant is less as-applied challenge fails, we need not and do not address the facial challenge. see united states court of appeals and the sixth amendment in admitting the post-kidnapping phone call. fourth, mr. united states v. carel, 668 f.3d 1211, 1216 (10th cir. 2011). because we conclude the mr. ford argues that because the jury was required to determine whether mr. because the district court decided the evidence was inadmissible, mr. morgan that's just like when we had got cortino. you know what i'm saying? the colorado, appearing for appellee. cell phones are instrumentalities. see united states v. means, 297 f. app’x 755, 759 n.5 morgan’s counsel said he did not “know how that can be cured by any type of limiting sanford was sentenced to 384 months. each defendant timely filed his notice of appeal. cure the rule 404(b) problem, the district court did not abuse its discretion by not specifically about why the joint trial prejudiced him because he was less involved than 1194 (10th cir. 2005). but we do so only when the mistrial decision is “squarely had a shootout and some more shit the other time and you all shot straight over here. (10th cir. 2008) (unpublished) (citing united states v. evans, 476 f.3d 1176, 1180 (11th therefore do not consider this issue as to him. see renteria, 720 f.3d at 1251. in his reply brief, we address the issue only as to mr. sanford and mr. ford. see hill v. continued . . . -11- addressed gps devices. prejudicial effect of an error.” id. “however, as an exception to the general rule, where judge to determine, not questions of fact for the jury to decide. we will discuss additional procedural history as it pertains to each issue addressed below. head, and put him into the back of the tahoe. mr. ford got into the tahoe and or further participation in the group's activities, to prompt further action on the part of that was the whole lot going on right there.” id. at 682-83. it is not clear who “you all” testimony of the unindicted co-conspirators, mr. patterson and mr. tabor. these mr. sanford appeals the district court’s denial of his severance motion.25 moved to sever, and the district court denied his motion. mr. sanford renewed his attorney, office of the united states attorney for the district of colorado, denver, -34- “legal conclusion”). the answer requires examination of the legal elements of the crime, mr. sanford argues this issue in his opening brief. aplt. sanford br. at 1-24. traffic that were also part of interstate traffic. lopez, 514 u.s. at 558. evidence supporting the verdict (as noted by the majority, supra), i am confident instrumentality of interstate commerce—a cell phone, the internet, or a gps device—in identify any of the perpetrators. the defendants expected she would not be asked to do 23 the rule 404(b) evidence, which would belie any suggestion that his substantial explained mr. patterson was talking about when mr. morgan committed a crime united states, 156 u.s. 51, 64-65 (1895). audio conversation. they were therefore difficult to understand. morgan and established she had at one point ruled him out as one of the perpetrators. tracking device is an instrumentality of interstate commerce.11 4 the men announced they were police officers and ordered ms. flores and mr. at a pretrial motions hearing, mr. morgan objected to the phone call’s admission considered, indicates” that the “primary purpose of the [statement is] to establish or prove 2 after this cross-examination, ms. flores appeared emotional and the court took a recess. upheld congress’s authorizing the interstate commerce commission to regulate compromise a specific trial right of one of the defendants, or prevent the jury from furtherance of a conspiracy, are factual findings, reviewed for clear error.” united states ford roa, vol. ii at 225. 242 (2001) (quotations omitted). prototypical fashion and, accordingly, he is entitled to no more than plain-error to exercise its discretion by seeking a mistrial on the alleged 404(b) issue. cir. 2007) for authority that cell phones are instrumentalities of interstate commerce). with others and split the proceeds right away. mr. patterson stated, “check this united states sentencing commission guidelines manual also lists kidnapping as a although law enforcement wiretapped the phone call, there is no evidence the transactions integral to the conspiracy in motion and maintain the information flow rob mario armendariz. pursuant to their plan, mr. morgan attached a gps tracking presented” to the district court. united states v. taylor, 514 f.3d 1092, 1096 in the 2006 amendment to the federal kidnapping act, congress prohibited the not [expressly] move for a mistrial and the court rapidly responded with a in unique ways. their arguments do not apply to mr. ford. he did not present any mr. tabor’s house. mr. sanford wore the stolen police gear. the defendants then 7 denied the motion based on rule 801(d)(2)(e), subject to the government proving the charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its mr. tabor’s house within several hours. the group met at mr. tabor’s house and mr. sanford and mr. ford argue the district court should have dismissed the armendariz’s young daughters were under 18 years of age for him to be convicted under the morning. a short time later, mr. morgan arrived at mr. tabor’s house, and the co- sanford and mr. morgan each argue this testimony specifically prejudiced each of them of past events are not ‘in furtherance,’ while statements of future intent that set the second reference was from mr. patterson. mr. morgan’s counsel mr. morgan argues we should reverse because all the errors combined deprived however, because mr. sanford’s and mr. morgan’s arguments can apply to mr. ford, we sentence for the use of a firearm during the commission of such a crime.10 that night, mr. armendariz and his wife, perla flores, were getting into their car expanded the crime to include intrastate activity when an “offender . . . uses . . . any . . . -36- intrastate rates charged by railroads providing interstate service. 234 u.s. at 351. lopez son. see chatwin v. united states, 326 u.s. 455, 462-63 (1946). a 2006 amendment stricken by the court. thus, this question and answer are not evidence in erred by not submitting these determinations to the jury.12 “it is well settled that the distribution of the proceeds of a conspiracy is an act a. constitutionality of federal kidnapping statute 2. jury instruction 13—crime of violence for the foregoing reasons, we affirm the district court. 11 states v. pierce, 70 m.j. 391, 394 (c.a.a.f 2011) (determining whether the internet is a the statements in the contested phone call were not made to be used for argument. in his reply brief, he attempts to adopt the commerce clause arguments b. jury instructions by giving instruction 11 to the jury, the district court concluded it must decide as a culpable than another, or by an allegation that a defendant would have a better chance of the defendants were tried together. the jury found each of them guilty on all matter of law whether cell phones, the internet, and gps devices are instrumentalities of district courts should act as advocates for defendants—obliged to apprehend and call in its case-in-chief, defendants renewed their rule 801(d)(2)(e) objection, which the in accordance with this amended statute, each of the four kidnapping counts under the abuse of discretion standard of review. u.s. at 124-26. a jury instruction to consider the statement only against the declarant “crime of violence” as “an offense that is a felony and . . . has as an element the use, armendariz home. furtherance of the conspiracy. they also contend admitting the statements violated their appeal would fail under the plain error standard of review even if he did. “to be plain, an mr. sanford and mr. morgan do not raise this issue. 1. rule 801(d)(2)(e) evidence presented against a codefendant.” united states v. iiland, 254 f.3d 1264, 1270 tenth circuit mr. morgan did not object to these curative statements, and the government did not use them in closing argument. unlike maestas, statements were made in the course of and in furtherance of the conspiracy.” united back at all. he done went from california to dallas to atlanta to new to establish “real prejudice, the defendant must demonstrate that the alleged because the statements were not testimonial. when the government sought to admit the cir. 2005). filed verdict” (quotations omitted)). the government argues these are questions of law for the although the question may have invited the jury to speculate, ms. flores had not from under the dresser and left the home. mr. sanford and mr. ford continued to search error and affirm. law, the district court was correct in not submitting this question to the jury. see sparf v. indictment because (1) congress lacked commerce clause authority to enact the federal this regard if the defendant never requested a mistrial. see united states v. mr. morgan failed to show before the district court and now on v. united states, 353 u.s. 391, 401-02 (1957) (rejecting an implied subsidiary conspiracy morgan contends the district court erred by not declaring a mistrial after the jury heard he also complained that mr. morgan kept more than his share of the money.4 although the jury had an unredacted transcript at the time the call was played, the the first reference was mr. ford’s statement about a prior dealing with mr. coconspirator's fears, or to keep coconspirators abreast of an ongoing conspiracy's mr. ford devotes most of his opening brief to challenging the district court’s jury in august 2009, mr. morgan and his friend, marvin tabor,2 instruction at this time.” ford roa, vol. ii. at 685. the court agreed that admitting the -32- a general objective of the conspirators is money, the conspiracy does not end, of offense [of kidnapping].” jury instruction 11—the instruction on counts 1, 2, 3, and 4 for -26- perpetrators. he further argues that ms. flores’s statement that she could identify a 1061. we deny mr. morgan’s cumulative error appeal because we find no error among no. 12-1408, 12-1442, 13-1032 like mr. sanford, mr. morgan argues prejudice because the jurors would believe ronald fujino, salt lake city, utah, appearing for appellant killiu ford. united states court of appeals ford roa, vol. i at 15-17. mistrial for an abuse of discretion. see united states v. stiger, 413 f.3d 1185, instructions. see united states v. muessig, 427 f.3d 856, 865 (10th cir. 2005). court denied mr. sanford’s motion again. mr. sanford argues the district court abused its and “[t]here is absolutely no indication that the statements in the telephone call” are perpetrator at the scene. mr. tabor testified that mr. sanford was part of the conspiracy, utah lighthouse ministry v. found. for apologetic info. & research, 527 f.3d 1045, implicating another defendant violates the latter’s sixth amendment confrontation which would include the meeting at mr. tabor’s house following the phone call—as one -29- 17 ford. see renteria, 720 f.3d at 1251. mr. sanford does not attempt to join this issue. facility or means of interstate commerce “is a question of law, to be answered by the . . . sixth amendment right to confront their accusers under bruton v. united states, 391 u.s. the defendants contend the admitted phone call violated their sixth amendment under rule 404(b).19 [you are instructed t]hat the last question yesterday afternoon by [the regulatory authority to prevent the harmful use of an instrumentality of interstate crime of violence. relation to any crime of violence or drug trafficking crime.” section 924(c)(3) defines right to life comm., inc. v. coffman, 498 f.3d 1137, 1155-56 (10th cir. 2007). the defendants’ claim fails because bruton applies only to testimonial statements. he also contends the only other evidence linking him to the crime was the biased ______________________________________ prejudice he suffered outweighed the expense and inconvenience of separate trials.” when, as here, certain items have been deemed instrumentalities as a matter of augustus sanford, a/k/a turk, plotted to kidnap and trial the objectionable statement was made a second time after the court warned the facility or means of interstate commerce). “[w]hen defendants properly have been joined under rule 8(b), a district court should impact mr. morgan’s substantial rights. mr. morgan has not argued that, but for morgan’s faces. upon hearing this statement later in the trial, mr. morgan argues, the defendants, mr. sanford had the opportunity to point this out to the jury through cross- crime scene with the money, he met with his co-conspirators to divide the proceeds, he jeffrey s. pagliuca, haddon, morgan, and foreman, p.c., denver, colorado, appearing i at 1413. the instruction defined “[a]n ‘instrumentality of interstate commerce’ [to] -19- grant a severance under rule 14 only if there is a serious risk that a joint trial would -31- i respectfully concur. i agree with the outcome of the majority’s opinion for the majority, identified “three broad categories of activity that congress may regulate men exit a black chevrolet tahoe and at least one other man arrive from across the street. jury heard evidence of mr. morgan’s prior bad acts in the same phone call discussed authorities information with sufficient particularity to enable the authorities to take some case that the internet is not an instrumentality of interstate commerce. the district court to commit a kidnapping. (2d cir.1992). around 11:00 p.m. on september 22, 2009, the defendants and mr. tabor met at even if mr. morgan preserved his mistrial issue for appeal, the district court did the issue raised under rule 801(d)(2)(e) for clear error and abuse of discretion, and the (holding that whether a crime is a crime of violence under 18 u.s.c. § 16—which uses meienberg, 263 f.3d 1177, 1180 (10th cir. 2001) (“where there has been no the declarant and the defendant were both members of the conspiracy, and (3) the ordinarily sufficient to cure any alleged prejudice to the defendant and declaring a supreme court has expressed a “preference in the federal system for joint trials of implied dissociation. it must be sufficiently clear and delivered to those with authority in he then redistributed the proceeds. rather than showing withdrawal, these actions with their two young daughters outside of a cousin’s house when they saw two armed holding that the conspiracy continued until all the proceeds were procured and 14 (10th cir. 2013) (quotations omitted). this “applies only if true errors occurred.” id. at from the conspiracy. the record shows mr. morgan had not withdrawn or frustrated the identified mr. morgan at any time up to and after that point in trial. not testimonial because they were made in furtherance of a conspiracy) abrogated on mr. sanford returned to mr. tabor’s home and complained to mr. tabor and mr. mr. tabor was a co-conspirator who testified for the government at trial. xallier consider this issue as to him. conspirator drove the tahoe around. eventually the tahoe dropped off mr. ford at mr. n[word] was supposed to come back in with ten.” ford roa,vol. ii at 681-82. it is not mr. sanford’s counsel then cross-examined ms. flores. the district court told the jury the remarks about prior acts had been stricken right to confront their accusers under bruton. see bruton, 391 u.s. at 124-26. we joining the other briefs. he did not make this objection in the district court and provides on whether the defendants committed violent acts, but whether the offense itself is a -7- determinations, not the court. the question before us is whether the district court plainly the defendants filed pretrial motions in limine to exclude this intercepted phone examination and again during closing argument. the jury was instructed to examine the the phone call into evidence. 18 u.s.c. § 1201(a)(1) for kidnapping mr. armendariz and ms. flores; two counts of the mistrial issue when he said no limiting instruction could cure the rule 404(b) york. then he comes back three weeks later with $200 n[word]. challenged statements.22 federal rule of criminal procedure 14(a) states: “if the joinder of offenses or counts. mr. morgan and mr. ford were each sentenced to 600 months in prison, and mr. mr. morgan did not make this argument in the district court. because we do not pursuant to 28 u.s.c. § 1291, we affirm as to each defendant. motion for mistrial, we must weigh the prejudicial effect of the [error] with the exited the home. claim that the district court should have declared a mistrial after the jury heard action to end the conspiracy”; or (2) “communicate his [or her] withdrawal directly to his 1054 (10th cir. 2008). we have not, however, determined whether a cell phone or gps for an abuse of discretion, preliminary foundational determinations, such as whether one.24 offense.” adam walsh child protection and safety act of 2006, pub. l. no. 109-248, before holmes, matheson, and bacharach, circuit judges. defendant whose case you are considering used or caused to be used an instrumentality of ordering a mistrial. see united states v. peveto, 881 f.2d 844, 859 (10th cir. 1989) (we clayton, 108 f.3d 1114, 1117 (9th cir. 1997). we said in an unpublished opinion that ii. discussion patterson about mr. morgan’s keeping too much of the proceeds. mr. ford called mr. we have held that telephones are instrumentalities of interstate commerce. see briefing and record and imagine which arguments might apply to which defendants.” phones and gps tracking devices are instrumentalities of interstate commerce, but his under that rubric. activity involving instrumentalities of commerce. lopez cited the shreveport rate cases, out though, cave [mr. ford]. check this out though, cave. i'm just saying, okay. do so was not plainly erroneous because there is no contrary supreme court or tenth states v. gabaldon, 91 f.3d 91, 94 (1996)) (internal quotation marks omitted)). op. at 25–26 (noting that mr. morgan failed to “ask explicitly for a mistrial district court’s determination of whether a crime is a crime of violence under § 924(c) a confronted ms. flores, demanding to know where mr. armendariz kept his money. ms. the defendants also argue mr. morgan withdrew from the conspiracy before the 25 why the denial of his severance motion prejudiced him. mr. sanford’s arguments are the district court’s inaction, an acquittal was likely—and, given the copious the other defendants joined. the district court denied the motion because a cautionary meanwhile, mr. sanford drove ms. flores and her daughters in her car to the conspirators that he [or she] will no longer be included in the conspiracy.” united states evidence presented properly during the trial and may not be based on

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