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United States of America v. John Wayne Hargrove
Case Number: 17-2102
Judge: Jerome A. Holmes
UNITED STATES COURT OF APPEALS
On appeal from The United States District Court for the District of New Mexico - Las Cruces
Plaintiff's Attorney: Dustin C. Segovia, Assistant United States Attorney (John D. Tierney, Acting
United States Attorney, with him on brief), Office of the United States Attorney
for the District of New Mexico
Denver, CO - Criminal defense lawyer represented defendant with two offenses: (1) conspiracy to distribute more than 100 kilograms of marijuana; and (2) possession with the intent to distribute 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana, and aidingand abetting said possession charges.
One night in February 2016, a Border Patrol agent detected seven
backpackers in the desert near Rodeo, New Mexico.1
This rural area is known for
narcotics trafficking. After that agent observed the backpackers, he alerted other
Border Patrol agents, who moved in to apprehend the backpackers. The agents
observed the seven backpackers enter an area containing ranching equipment. Six
of the seven backpackers then left this area without their backpacks. The agents
detained these six backpackers. The backpackers were dressed in camouflage
clothing and wearing carpeted booties on their feet, which are typically worn to
mask footprints. They admitted they had entered the country illegally.
The dispatched agents then began looking for the missing (i.e., seventh)
backpacker and the discharged backpacks. The agents discovered a truck that
appeared to be occupied by two individuals who were “trying to conceal
themselves or pretend[ing] to be sleeping in the truck, kind of slouching low in
their chairs.” R., Vol. III, at 46 (Trial Tr., dated Oct. 17–18, 2016). As they
approached, the agents could detect the smell of marijuana emanating from the
truck. An agent tapped on the truck’s window and asked the occupant on the
1 In the narcotics-trafficking context, a “backpacker” is a person who
smuggles marijuana across the United States-Mexico border. See R., Vol. III, at
36–37 (Trial Tr., dated Oct. 17–18, 2016).
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driver’s side—a woman, later identified as Ms. Richter—to roll down the
window. After she did so, Ms. Richter got out of the vehicle. Likewise, an agent
also asked the occupant of the front passenger’s side of the vehicle—a man, later
identified as Mr. Hargrove—to get out of the truck. Mr. Hargrove complied.
There was also a third person in the truck, in the back seat on the passenger’s
side, who the agents had not originally seen. This man, later identified as Mr.
Silvas-Hinojos, also exited the truck. The agents believed that Mr. SilvasHinojos was the seventh backpacker.
After the three occupants exited the truck, an agent noticed a bundle of
marijuana lying in the center of the truck’s back seat. Agents also found and
seized more bundles of marijuana in the bed of the truck; these bundles were
partially covered by a tarp. The government later learned (through the
cooperation of Mr. Silvas-Hinojos) that Mr. Hargrove had received the bundles of
marijuana from the backpackers and strapped them down in the bed of his truck.
In total, the agents seized approximately 297 pounds of marijuana from the truck.
When Mr. Hargrove exited the truck, an agent patted him down and found
two knives on his person. After another agent noticed a rifle in the truck’s back
seat, Mr. Hargrove told the agents that he had “two weapons inside the vehicle,”
including the rifle. Id. at 263. The second firearm, a pistol, was found on the
truck’s dashboard inside a bag bearing an Oakland Raiders emblem. At the time
of these events, Ms. Richter was wearing a jacket with an Oakland Raiders
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emblem that matched the one on the bag containing the pistol. Mr. Hargrove, Ms.
Richter, and all of the backpackers were arrested.
After his arrest, Mr. Hargrove again “admitted the loaded rifle and pistol
found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5 (Presentence
Investigation Report (“PSR”), dated Jan. 26, 2017). The agents asked Mr.
Hargrove about the bundles of marijuana they had found in his truck, and he told
the agents that he believed the bundles were alfalfa, not marijuana, and that he
was simply in the area to go fishing.
Mr. Hargrove was charged with two counts: (1) conspiracy to distribute
more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; and (2)
possession with the intent to distribute 100 kilograms or more of a mixture and
substance containing a detectable amount of marijuana, and aiding and abetting
said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C.
§ 2. Ms. Richter and two of the backpackers were charged with similar crimes,
but these three pleaded guilty pursuant to plea agreements. Mr. Hargrove
proceeded to trial.
Prior to trial, Mr. Hargrove filed a motion in limine requesting that the
district court exclude all evidence regarding firearms or knives, including “all
purported testimony [that] one of the firearms [was] stolen.” Suppl. R. at 12–14
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(Mr. Hargrove’s Mot. in Lim., dated Oct. 10, 2016). This motion contended that
“the possession of the firearms was simply part of his property” and that Mr.
“Hargrove made no attempt to hide or distance himself from the firearms,” and it
argued, among other things, that admitting evidence that one of the firearms was
stolen would be unduly prejudicial. Id. at 13–14.
The district court resolved this motion in a written order. It reasoned that
“[t]he presence of loaded firearms that Defendant admitted belong to him, and
their location in the cab of the truck[,] is probative of Defendant’s knowledge and
of his agreement to participate in a drug trafficking scheme.” Id. at 18 (Mem. Op.
and Order, dated Oct. 14, 2016). The court further ruled that the probative value
of this evidence was not substantially outweighed by potential prejudice; thus, the
evidence was admissible. But the court adopted a contrary stance regarding the
stolen nature of one of the firearms, concluding that “the fact that one of the
firearms was stolen is not particularly probative of any fact at issue.” Id.
Consequently, the court found this evidence to be inadmissible, as the risk of
prejudice substantially outweighed any conceivable relevance. Thus, the court
granted the motion in part, excluding any testimony concerning the stolen nature
of one of the firearms but allowing testimony about the presence of loaded
firearms in the truck.
At trial, Mr. Hargrove’s strategy was to raise doubt regarding whether he
knew of the drug-trafficking activity and knowingly agreed to participate in it.
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Specifically, during opening statements, Mr. Hargrove’s counsel told the jury that
Ms. Richter “arranged this marijuana deal,” R., Vol. III, at 202, that she had
asked to borrow Mr. Hargrove’s vehicle, id., that she told Mr. Hargrove that they
were going to “camp out” at a fishing hole and “hang out for a few days,” id. at
202–03, and that Mr. Hargrove—without any knowledge of the planned drugtrafficking activity—agreed to do that, id. at 203.
However, in eliciting testimony concerning the presence of loaded firearms
in order to undermine this defense, as authorized by the district court, the
prosecution strayed into forbidden territory. In response to the prosecutor’s
questions, a Border Patrol agent testified that one of the firearms had been stolen:
Q. Agent , is this -- are these the two individuals that you
arrested that night?
A. Yes sir.
Q. And you notice [Ms. Richter] has also an Oakland Raiders
decal on her jacket?
A. Yes, yes, sir.
Q. Is that basically what the bag was like also with where the
A. Yeah, it was a black bag with an Oakland Raiders emblem
Q. And the defendant, though, was the one that told you
where the gun was?
A. Yes, sir.
Q. Did you ever ascertain ownership of that gun?
A. No, sir.
. . . .
Q. Did you eventually ascertain ownership of the gun?
A. I ran records checks on both weapons and the truck, yes,
Q. And to whom did it come back to?
A. The truck came back to the defendant. The rifle came
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back as a clear weapon and the pistol came back as stolen.
Id. at 264–65 (emphasis added).
Mr. Hargrove’s counsel objected and immediately moved for a mistrial,
arguing that the testimony about the stolen gun could not be “cure[d] with an
instruction.” Id. at 265. The district court held a hearing on the issue outside of
the jury’s presence. The court first asked the agent if he had been instructed not
to testify about the stolen nature of the gun. The agent answered that he had been
informed to disregard the fact that the gun was stolen, but “misunderstood the
question” and stated that he did not “know how to answer [the question] without
. . . not telling the truth.” Id. at 268. The prosecutor admitted “it’s my fault,”
conceding that he did not “frame the question correctly.” Id. Accordingly, the
court concluded that the error lay with the prosecutor and that the agent was not
to blame for the utterance. The court subsequently took the motion for a mistrial
under advisement. See id. at 269 (“[T]his is how I’m going to play it: I am going
to take under advisement the motion to mistrial. I’m going to instruct the jury
when they get back that they are to completely disregard the answer. And then
I’m going to see how the testimony proceeds and -- well, we’ll see where it
The court called the jury back into the courtroom and gave the following
Ladies and gentlemen, in the preliminary instruction this
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morning, I told you that if, at some point in the trial, I told you
to disregard something that you heard, then you couldn’t consider
that matter in your deliberations later in the trial. Well, that’s
happened. So right before you left for your break, there was a
statement made by the agent that one of the firearms may have
been stolen. The stolen nature of those firearms is not at issue in
this case. That is not something that you need to consider. In
fact, I’m going to ask you and expect you to disregard anything
regarding that firearm or its ownership. That’s not something
you need to concern yourself with in this trial.
And as we talked this morning, what’s before you are the two
charges, conspiracy and possession with intent on the marijuana.
There isn’t any charge related to firearms, their ownership, and
it would be inappropriate for you to consider those facts in
addressing the facts that are actually in front of you and the
elements of the charges that are actually in front of you. So
please disregard any thought or connection relating to the
ownership of that firearm.
Id. at 284–85 (emphases added). Following that instruction, the trial resumed and
the prosecutor quickly finished his cross-examination of the agent.
Moreover, the prosecutor took remedial measures during the remainder of
the trial: specifically, the prosecutor (1) withdrew an exhibit displaying all
weapons retrieved from the truck, see id. at 25 (“[T]he government would not
oppose removing [Government’s Exhibit Number 15, i.e., a photo of the guns and
knives] if it will help alleviate some of the damage that was done. So since the
jury hasn’t seen it, the government, without objection from defense, will
withdraw that exhibit.”); (2) did not seek testimony from its expert witness
regarding the use of firearms in the narcotics trade, even though it had filed a
notice with the court regarding expert testimony in this area; and (3) did not
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discuss either of the guns during its closing argument.
After the close of all of the evidence but prior to closing arguments, the
district court denied the motion for mistrial, concluding that the prosecutor’s
violation of the court’s ruling was not “intentional” but rather “was a mistake . . .
caused by an inartfully asked question.” Id. at 138. The court further concluded
that, in light of all of the evidence, the improper testimony was not
“consequential.” Id. The defense renewed its objection after the court’s ruling
but seemed to agree that the prosecutor had not acted in bad faith in eliciting the
testimony. Id. at 139 (“Obviously, I don’t think the issue of whether it was in bad
faith or not is really at issue here. What’s at issue is the prejudice of the exact
nature of the testimony that was specifically excluded that came in. And it is of
such nature that the only fair remedy to this proceeding would be to declare a
Then, after the closing arguments, the court again instructed the jury:
During the trial, I didn’t let you hear answers to some of the
questions that the lawyers asked and sometimes I ordered you to
disregard things you saw or heard or I struck things from the
record. You must completely ignore all of those things. Don’t
even think about them. Don’t speculate about what a witness
might have said. These things are not evidence and you’re bound
by your oath not to let them influence your decision in any way.
Id. at 144. After approximately one hour of deliberation, the jury found Mr.
Hargrove guilty on both counts.
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Following Mr. Hargrove’s conviction, the U.S. Probation Office prepared a
PSR noting that the mandatory-minimum sentence was sixty months’
imprisonment and computing an advisory Guidelines sentencing range of sixty to
sixty-three months’ imprisonment. Id., Vol. II, at 1–15 (PSR, dated Jan. 26,
In his Sentencing Memorandum and Objections to the PSR, Mr. Hargrove
argued that he qualified for the safety valve under U.S.S.G. § 5C1.2 and,
therefore, his sentence should have been calculated without regard to the
otherwise-applicable mandatory minimum.3
See id., Vol. I, at 40–42
2 The Probation Office used the 2016 edition of the Guidelines in
calculating Mr. Hargrove’s sentence. Neither party questions this choice on
appeal; therefore, we also rely on the 2016 edition, to the extent that it is relevant
to the resolution of the issues on appeal.
3 The Guidelines safety-valve provision (i.e., § 5C1.2) traces back to a
statutory safety-valve provision that Congress had enacted, 18 U.S.C. § 3553(f);
this provision permits a district court to disregard the otherwise applicable
statutory mandatory minimum and to sentence a defendant in accordance with the
advisory Guidelines and the sentencing factors of 18 U.S.C. § 3553(a). See, e.g.,
United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (“Section 3553(a)
mandates consideration of its enumerated factors . . . .”); United States v.
Altamirano-Quintero, 511 F.3d 1087, 1091 (10th Cir. 2007) (noting that the
statutory safety-valve provision “permits the district court to disregard a statutory
mandatory minimum sentence and instead impose a sentence within the advisory
sentencing guidelines range”); United States v. Acosta-Olivas, 71 F.3d 375, 379
(10th Cir. 1995) (“In sum, § 3553(f), as repeated in guideline [U.S.S.G.] § 5C1.2,
was clearly intended to permit courts to sentence relatively less culpable
offenders to sentences below an otherwise applicable mandatory statutory
minimum sentence.”). In U.S.S.G. § 5C1.2, not only has the Sentencing
Commission “set forth the relevant provisions” of § 3553(f), but it also “has
promulgated application notes to provide guidance in the application of the
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(Sentencing Mem. & Objs. to PSR, dated Apr. 24, 2017). In particular, Mr.
Hargrove disputed whether he had “possess[ed] a firearm or other dangerous
weapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Mr.
Hargrove asserted that there was no evidence that the firearms’ presence “had
anything to do with the marijuana transaction”; consequently, Mr. Hargrove
reasoned that he was eligible for safety-valve relief under § 5C1.2. R., Vol. I, at
41. After making other arguments for the application of reductions and a
variance, Mr. Hargrove requested a sentence of eighteen months’ imprisonment.
During the first of two sentencing hearings, Mr. Hargrove’s counsel argued
that the transaction resulting in his arrest was not a “typical drug situation” that
was “real dangerous” because money was not exchanged between the backpackers
and the individual picking up the drugs. Id., Vol. III, at 7 (Sentencing Hr’g Tr.,
dated May 4, 2017). He thus reasoned that Mr. Hargrove would not have needed
to bring a firearm for protection. The district court rejected this argument, noting
statute.” U.S.S.G. § 5C1.2, cmt. background. Mr. Hargrove’s safety-valve
argument before the district court was consistently framed in terms of the
Guidelines provision, § 5C1.2. Though his opening brief is sprinkled with several
citations to the statutory safety-valve provision, § 3553(f), Mr. Hargrove also
primarily invokes the rubric of § 5C1.2 in stating his appellate challenge. Aplt.’s
Opening Br. at 1 (stating the issue for review as whether “Mr. Hargrove
possess[ed] a firearm in connection with the offenses of which he was convicted,
such that he was ineligible for the safety valve under [U.S.S.G.] § 5C1.2?”).
Given that the Guidelines safety-valve provision restates verbatim the relevant
text of the statutory safety-valve provision, Mr. Hargrove’s litigation decision on
this point is of no moment in our analysis.
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that “[i]f I’m going to my first big drug deal in Rodeo -- in a farm outside Rodeo,
New Mexico, in the dark of the night with a bunch of guys, backpackers, coming
over the hill, I might think I needed to be protected.” Id. at 8. Mr. Hargrove’s
counsel also argued that the weapons were unrelated to the offense, as many
individuals in remote areas carry weapons because of “snakes,” “varmints,” and
“things of that nature.” Id. at 9. The court, however, expressed skepticism,
questioning “[h]ow many of those [weapons used as protection against animals]
[we]re stolen,” like one of Mr. Hargrove’s guns. Id. Because of the potential for
a “big swing” based on the application vel non of the safety valve, the court
recessed for further research on how to treat the firearms. Id. at 16.
In a written order, the district court denied Mr. Hargrove safety-valve
relief. Specifically, the district court stated: “The only question at issue is
whether [Mr. Hargrove] possessed the firearms ‘in connection with the offense.’”
Id., Vol. I, at 23 (Mem. Op. and Order, dated May 25, 2017) (quoting 18 U.S.C.
§ 3553(f)). The district court recited the relevant facts: Mr. Hargrove and both
guns were found in the cab of the truck, and most of the marijuana was found
close by in the truck’s bed; both guns were loaded; and Mr. Hargrove evinced
knowledge of the location of the guns by voluntarily telling the agents about
them. The district court concluded that “[b]oth [the] proximity and the potential
[of the weapons] to facilitate the offense” established that the weapons were
possessed “in connection with the offense.” Id. at 23–24. The court further
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reasoned that “[e]ven if the firearms did not directly facilitate the drug
transaction, they certainly had the potential to do so.” Id. at 24. The court
concluded: “Under these circumstances, Defendant has not met his burden by a
preponderance of the evidence to demonstrate eligibility for the safety valve.
Thus, Defendant is subject to the statutory mandatory minimum sentence of 60
The court then held a second sentencing hearing. During his allocution,
Mr. Hargrove stated: “I had my guns with me ‘cause I was going to work and I
might come across a rattlesnake.” Id., Vol. III, at 324 (Sentencing Hr’g Tr., dated
June 7, 2017). He further stated that at the time of his arrest he “was four and a
half feet away from [his] weapon.” Id. at 327. The district court subsequently
sentenced Mr. Hargrove to sixty months’ imprisonment, the applicable
mandatory-minimum sentence. Mr. Hargrove now appeals.
We are presented with two issues in this appeal: (1) whether the district
court erred in failing to grant Mr. Hargrove’s motion for a mistrial after the
Border Patrol agent testified about the stolen nature of Mr. Hargrove’s pistol, and
(2) whether the district court erred in failing to grant Mr. Hargrove safety-valve
relief under U.S.S.G. § 5C1.2. Because we conclude that the district court did not
err with respect to either issue, we affirm the court’s judgment as to Mr.
Hargrove’s conviction and sentence.
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We first address Mr. Hargrove’s assertion that the district court erred by
denying his motion for a mistrial after the Border Patrol agent testified that the
pistol in Mr. Hargrove’s car was stolen, in direct contravention of the district
court’s ruling in limine. As discussed below, we conclude that Mr. Hargrove’s
arguments in support of this assertion are unavailing.
“We review a district court’s refusal to grant a mistrial for abuse of
discretion. The district court has discretion to grant a mistrial only when a
defendant’s right to a fair and impartial trial has been impaired.” United States v.
Meridyth, 364 F.3d 1181, 1183 (10th Cir. 2004) (citation omitted). “This calculus
calls for ‘an examination of the prejudicial impact of an error . . . viewed in the
context of an entire case.’” United States v. Wells, 739 F.3d 511, 532 (10th Cir.
2014) (quoting Meridyth, 364 F.3d at 1183). “While there are ‘cases where the
prejudicial effect cannot be erased because the evidence is of such a nature that it
necessarily interferes with the jury’s impartial consideration of other evidence,’
‘[t]he general rule is that the effect of improper evidence may be remedied by
admonishing the jury to disregard and by withdrawing the evidence.’” Id. at 533
(alteration in original) (quoting United States v. Laymon, 621 F.2d 1051, 1053
(10th Cir. 1980)).
“Under the abuse of discretion standard, a trial court’s decision will not be
disturbed unless the appellate court has a definite and firm conviction that the
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lower court has made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d
1237, 1248 (10th Cir. 2000) (quoting United States v. Thompson, 908 F.2d 648,
650 (10th Cir. 1990)). Or, put another way, “[w]e will not disturb a district
court’s decision to deny a motion for a mistrial unless the decision ‘was based on
a clearly erroneous finding of fact or an erroneous conclusion of law or manifests
a clear error of judgment.’” United States v. Templeman, 481 F.3d 1263, 1265
(10th Cir. 2007) (quoting United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir.
2005), abrogated in part on other grounds by Alleyne v. United States, 570 U.S.
99, 108 (2013)).
In determining whether a mistrial is necessary “where the prosecutor asked
a question her witness answered in a potentially improper way,” the
nonexhaustive set of factors that we consider “include”: (1) whether the
prosecutor acted in bad faith, (2) whether the district court limited the effect of
the improper statement through its instructions to the jury, and (3) whether the
improper remark was inconsequential in light of the other evidence of the
defendant’s guilt. Meridyth, 364 F.3d at 1183. Here, all three factors weigh in
favor of affirming the district court’s decision.
The parties first dispute whether the prosecutor acted in bad faith in
eliciting the Border Patrol agent’s improper testimony about the stolen gun. The
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district court found no bad faith by the prosecutor, specifically ruling that the
prosecutor did not act in an “intentional” manner in eliciting the improper
testimony but, rather, made “a mistake,” and that the testimony was “caused by an
inartfully asked question.” R., Vol. III, at 138. We conclude that the district
court’s assessment was firmly grounded in the record evidence and legally sound.
We primarily rest our conclusion on two variables that our caselaw has
deemed to be significant in the bad-faith inquiry.4
First, we have inquired
whether “the prosecutor . . . intentionally elicit[ed] the statement in question.”
Meridyth, 364 F.3d at 1184; see United States v. Kamahele, 748 F.3d 984, 1017
(10th Cir. 2014) (discerning no bad faith in part because “[t]he mistake
appear[ed] to be innocent”). And, second, we have noted whether the prosecutor
acknowledged the improper character of the testimony and took steps to mitigate
its prejudicial effects. See Wells, 739 F.3d at 533 (affirming denial of a motion
4 During oral argument on the motion for mistrial before the district
court, Mr. Hargrove’s trial counsel seemed to concede that the prosecutor did not
act in bad faith. See R., Vol. III, at 139 (“Obviously, I don’t think the issue of
whether it was in bad faith or not is really at issue here. What’s at issue is the
prejudice of the exact nature of the testimony that was specifically excluded that
came in.”). The government acknowledges this apparent concession here but does
not argue that it is dispositive. See Aplee.’s Resp. Br. at 24 (“Contrary to
Hargrove’s assertion of bad faith on appeal, as Hargrove’s trial counsel
acknowledged and as the district court found, the government did not act in bad
faith in asking the questions that it did.”). In light of the government’s approach,
we are content to accord the apparent concession of Mr. Hargrove’s counsel on
the bad-faith issue little weight in our analysis, though it is not irrelevant. It is
simply noteworthy in passing that Mr. Hargrove’s trial counsel, who saw the
prosecutor’s questioning of the agent in real time—just as the trial judge did—did
not at that time view the prosecution’s conduct as evidencing bad faith.
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for mistrial in part because the “prosecutor attempted to change the subject
immediately after” the inappropriate testimony); cf. Meridyth, 364 F.3d at 1184
(noting that the prosecutor’s failure to fully acknowledge the improper nature of
the testimony “somewhat belied” her “ostensibly innocent explanation” for
eliciting the testimony).
Turning to the first variable, though it is undisputed that the prosecutor’s
questions elicited the improper, stolen-gun testimony, the district court did not
clearly err in finding that the prosecutor did so inadvertently (i.e., by mistake),
not with bad intent. See Meridyth, 364 F.3d at 1184. The Border Patrol agent
stated that the prosecutor told him not to testify about the stolen nature of the
gun. See R., Vol. III, at 268. The fact that the prosecutor specifically instructed
the agent not to testify about the stolen nature of the gun significantly undermines
any notion that the prosecutor’s intent was to put the improper testimony before
the jury. See Kamahele, 748 F.3d at 1017 (concluding that the prosecutor’s
“mistake appear[ed] to be innocent [because] the prosecutor informed the district
court that she had previously instructed the witness not to discuss” the improper
In response, Mr. Hargrove points to the fact—ostensibly suggestive of ill
intent—that the prosecutor repeatedly inquired about the ownership of the gun
before the agent uttered the improper testimony. But, at least under the
circumstances here, this tells us virtually nothing about whether the prosecutor
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acted with bad intent or was simply careless and persistently so.
And, in this factual setting, we view the second variable—the prosecutor’s
conduct in acknowledging the improper character of the testimony and taking
steps to mitigate its prejudicial effects—as strongly indicating that the prosecutor
did not act in bad faith. First, in the immediate aftermath of the improper
testimony, the prosecutor admitted that his questioning was unclear and that he
was at fault for causing the testimony to be uttered. See R., Vol. III, at 268 (“I
think it’s my fault because I didn’t ask [the pertinent questions] clear[ly] enough.
But I didn’t intend to violate the order. I just didn’t -- I didn’t frame the question
correctly.”). This immediate acceptance of responsibility—while certainly not
dispositive—provides some support for the conclusion that “the prosecutor did
not intentionally elicit the statement in question.” Meridyth, 364 F.3d at 1184.
Indeed, the prosecutor’s conduct here contrasts markedly with the prosecutor’s
conduct in Meridyth. There, instead of immediately accepting responsibility for
adducing the improper testimony, the prosecutor spent much of her “response to
the motion for a mistrial” trying to convince the court that there actually was an
evidentiary basis for the introduction of the testimony; the prosecutor could
reasonably be understood from this line of argument as saying that, even if she did
intend to adduce the testimony, her conduct would not have been improper. Id.
We concluded in Meridyth that the prosecutor’s approach “somewhat belied” her
“ostensibly innocent explanation,” which was based on the view that she did not
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actually intend to adduce the testimony. Id. In short, the prosecutor’s immediate
acceptance of responsibility here is significantly probative of the prosecutor’s
lack of bad faith.
We view in a similar light the prosecutor’s efforts to mitigate the
prejudicial effects of the improper testimony throughout the remainder of the
trial. Once he resumed the examination of the agent (i.e., following the improper
utterance), the prosecutor immediately veered his questioning away from the
stolen gun and began inquiring about other issues; he thereafter quickly ended his
examination of the agent:
Q. Agent , did you find any binoculars in the vehicle?
A. There was a set of night-vision goggles inside the vehicle.
Q. Where in the vehicle were they?
A. I don’t recall. I did not locate them, myself.
[Prosecutor]: I’ll pass the witness, Your Honor.
R., Vol. III, at 285. Such a dramatic shift supports the district court’s finding that
the prosecutor did not intend to put the improper testimony before the jury in the
first place. See Wells, 739 F.3d at 533. Furthermore, moving past the immediate
aftermath of the improper testimony, the prosecution went to great lengths to limit
any damage caused by the testimony by taking the following steps: (1)
withdrawing an exhibit that displayed all of the weapons retrieved from the truck;
(2) forgoing testimony from its expert witness regarding the use of firearms by
drug traffickers to safeguard their narcotics loads, even though it had given notice
of expert testimony to this effect; and (3) avoiding any discussion of the guns
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during its closing argument. In sum, the prosecutor’s actions—both immediately
after eliciting the improper testimony and throughout the remainder of the
trial—clearly evince a strong intent to mitigate any prejudicial effects of the
improper testimony, rather than an intent to highlight or cement such effects.
Such remedial efforts strongly suggest that the prosecution did not intend to elicit
the improper testimony to begin with.
To be sure, we noted in Meridyth that one of the “helpful” inquiries
“subsumed within the ‘bad faith’ factor” is whether the prosecutor’s “line of
questioning was reasonable.” 364 F.3d at 1183 n.3. Mr. Hargrove underscores
this point, arguing that “there was no reason for this [i.e., the prosecutor’s] line of
questioning” and that “the line of questioning was wholly unreasonable.” Aplt.’s
Opening Br. at 27–28. In response, the government contends that the prosecutor’s
questioning was designed (albeit inartfully) to establish that Mr. Hargrove had
claimed ownership of the firearms, in order (1) to show that he was aware of the
drug transaction that was going on, and (2) to avoid the jury drawing an incorrect
inference from the testimony that immediately preceded the ownership line of
questioning—that is, testimony about Ms. Richter wearing an Oakland Raiders
jacket with an emblem that matched the one on the Oakland Raiders bag
containing the pistol. More specifically, the government contends that the
prosecutor apparently reasoned that “the jury could have inferred [wrongly from
the fact that the bag displayed the same Oakland Raiders emblem as Ms. Richter’s
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jacket] that it was Richter’s bag and Richter’s firearm, even though Hargrove was
aware of the location of the firearm.” Aplee.’s Resp. Br. at 20. Accordingly, the
government argues that the testimony was relevant to undermine Mr. Hargrove’s
defense theory that Ms. Richter planned the entire event and that he agreed to go
along on the trip with lawful purposes in mind, without knowledge of the drugtrafficking activity.
On this specific point, however, we are not persuaded by the government’s
argument. Recall that, among other things, the prosecutor asked the agent with
respect to the pistol: “Did you ever ascertain ownership of that gun?” and “[T]o
whom did it come back to?” R., Vol. III, at 264–65. Under these circumstances,
we are hard-pressed to discern the relevancy of any testimony regarding the legal
ownership of the pistol. Indeed, if the prosecutor just wanted to establish for the
jury that it was Mr. Hargrove—not Ms. Richter—who possessed the pistol and
brought it to the drug transaction (with the attendant inference that Mr. Hargrove
knew drug-trafficking activity was going on and needed the firearm to protect it),
the prosecutor could have simply asked the agent if he knew whether anyone laid
claim to the pistol during the arrests and investigation of the crime. And the
agent almost certainly would have responded that Mr. Hargrove did so.
Based on the foregoing, we therefore do not find the government’s
argument regarding the reasonableness of its line of questioning persuasive.
However, the prosecution can act unreasonably without acting in bad faith. Given
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the totality of the circumstances here, we reject Mr. Hargrove’s suggestion that
this one factor “weighs heavily in favor of a finding that the Government acted in
bad faith.” Aplt.’s Opening Br. at 28. As noted, the district court’s finding that
the prosecutor elicited the improper testimony through inadvertence—rather than
intentionally—is firmly supported by the record, and the prosecutor’s conduct in
promptly acknowledging the improper character of the testimony and taking steps
to mitigate its prejudicial effects strongly supports the conclusion that the
prosecutor did not act at the outset in bad faith in eliciting the improper
testimony. In light of these circumstances, we feel confident in rejecting any
suggestion that the prosecutor’s questioning amounted to “a gratuitous attempt to
improperly influence the jury” through placing improper testimony before it about
the stolen nature of the pistol. Meridyth, 364 F.3d at 1184. More generally,
considering all of the circumstances, we conclude that the prosecutor did not act
in bad faith, and that this criterion weighs heavily in the government’s favor.
We next consider whether the district court’s instructions following the
testimony about the stolen gun “limited the effect of the improper statement . . .
to the jury.” Meridyth, 364 F.3d at 1183. We conclude that this factor also
weighs heavily in the government’s favor.
We presume that jurors “follow their instructions.” Id. at 1184; United
States v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008) (“We presume that jurors
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will follow clear instructions to disregard evidence . . . .” (quoting United States
v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002))). However, this presumption
may be overcome: “[W]here the character of the testimony is such that it will
create so strong an impression on the minds of the jurors that they will be unable
to disregard it in their consideration of the case, although admonished to do so, a
mistrial should be ordered.” Maestas v. United States, 341 F.2d 493, 496 (10th
Cir. 1965); see also Lamy, 521 F.3d at 1266 (noting that the presumption applies
“unless there is an overwhelming probability that the jury will be unable to follow
the court’s instructions, and a strong likelihood that the effect of the evidence
would be devastating to the defendant” (quoting Caballero, 277 F.3d at 1243)).
Mr. Hargrove contends that the agent’s improper testimony made the “sort
of strong impression” described in Maestas, Aplt.’s Opening Br. at 31, but his
assertions on this issue are entirely conclusory. He vaguely references his
opening brief’s “discussion of the third factor” (i.e., of whether the agent’s
testimony was inconsequential), id., without ever mentioning what components of
this discussion are relevant under Maestas. Indeed, he never again mentions
Maestas, nor does he discuss its facts or analyze what “character of . . .
testimony” is necessary to give rise to the kind of “strong impression” that a jury
might be unable to disregard. Maestas, 341 F.2d at 496. Therefore, we view Mr.
Hargrove’s contention as waived. See, e.g., United States v. Pursley, 577 F.3d
1204, 1231 n.17 (10th Cir. 2009) (noting that a “skeletal reference does not
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present a cognizable issue for appellate review”); accord United States v. Gordon,
710 F.3d 1124, 1144 n.22 (10th Cir. 2013). And we properly turn our attention to
assessing the import of the district court’s instructions, which we presume the
As noted above, the district court gave two limiting instructions, one
directly in the wake of the improper testimony and one after the close of
evidence. In brief, in its instructions, the court told the jury both (1) to disregard
the specific testimony about the stolen nature of the pistol, and (2) to completely
ignore any and all inferences regarding the pistol—with the clear aim of giving
the agent’s testimony no influence in the jury’s decision-making. In other words,
the court effectively instructed the jurors to act as if they had never heard the
stolen-gun testimony and to avoid thinking about that testimony.
Despite the seeming clarity of those instructions, Mr. Hargrove asserts that
the district court’s approach was inadequate because the court did not
“specifically and expressly indicate” that the jury should not reach the
“potential conclusion” that “by virtue of possessing a stolen gun, Mr. Hargrove’s
character was that of a criminal and he had a propensity to commit criminal acts.”
Aplt.’s Opening Br. at 29. He further contends that the court should have “also
specifically instruct[ed] the jury to refrain from considering the evidence as proof
of [his] criminal propensity.” Aplt.’s Reply Br. at 8. In support of his position,
Mr. Hargrove cites to both Meridyth and United States v. Hardwell, 80 F.3d 1471
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(10th Cir.), modified in part on reh’g, 88 F.3d 897 (10th Cir. 1996). However,
neither of those cases supports his position.
More specifically, Mr. Hargrove argues that the district court’s instructions
in this case were “confusing and not particular enough” when compared to the
district court’s instructions in Meridyth because they did not specify which
inference the jury could not make—viz., it could not infer from the stolen nature
of the gun that Mr. Hargrove had a propensity towards crime. Aplt.’s Opening
Br. at 29. In Meridyth, the panel observed that, after testimony was elicited from
which the jury could have inferred that the defendant threatened a witness, the
district court “took great pains to instruct the jury not to infer” that such a threat
had taken place and that the effect of such instructions “in th[at] case” was to
“preclude the improper inference” of the threat.5
Meridyth, 364 F.3d at 1184.
5 To provide helpful context, we reproduce below the salient aspects of
the district court’s instructions quoted in Meridyth:
After an exhaustive discussion with counsel and my own
examination of this witness out of your hearing, I have
determined a couple of things.
First, it appears that the United States Attorney asked the
question regarding why this witness moved to, in part, explain
why the United States Government, through the United States
Attorney’s Office, has provided $1000 in assistance for this
individual to move. You will recall that the witness said he
moved because of threats made against him.
In part, an inference that you could draw from that statement was
that the threats were made by [a co-defendant] and Mr. Meridyth.
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Juxtaposed with the Meridyth court’s specific instructions, Mr. Hargrove
maintains, the district court’s instructions here were inadequate. We disagree.
The district court’s instructions here actually had a broader prophylactic
scope than the ones in Meridyth; they necessarily reached not only the specific
inference relating to the stolen-gun that concerned Mr. Hargrove—i.e., the
inference that he possessed a criminal propensity—but each and every other
inference relating to the testimony about the gun. Recall that the court explicitly
and unequivocally instructed the jury to “to disregard anything regarding that
firearm or its ownership.” R., Vol. III, at 284 (emphasis added). Anything means
anything. More specifically, anything would include any criminal-propensity
inferences stemming from the stolen nature of the gun. Moreover, the court did
not take any chances that the jury might not comprehend its all-encompassing
instructions that the jury should put out of mind any inferences related to the
I am telling you now that that would be an improper inference,
based on all of the information I now know. You will recall that
this witness was working on at least 40 cases with the drug task
force. That gives this witness ample opportunity to make a lot of
While I have no reason to doubt that—the likelihood that what
motivated him to move were threats, it can’t be said, based on
any credible evidence now known to the Court that those threats
can be connected to these defendants. And you may not infer that
they do, based on the evidence we now have.
364 F.3d at 1182–83 (quoting the record).
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stolen firearm—including possible inferences regarding Mr. Hargrove’s criminal
propensities. The court expressly and specifically emphasized that the jury was
not to consider “a statement made by the agent that one of the firearms may have
been stolen.” Id. Thus, based on the court’s instructions, we presume the jury
understood that it was obliged not to consider any inferences based on the
testimony about the stolen firearm; this would necessarily include an inference
that Mr. Hargrove possessed a criminal propensity because the pistol was stolen.6
Mr. Hargrove’s only retort to this seems to be that the instructions were
“confusing” because they “appear[ed] to only indicate that the testimony . . .
could not be used to find Mr. Hargrove guilty of the charged offenses.” Aplt.’s
Opening Br. at 29. Mr. Hargrove is correct that the court’s instructions
6 Our decision in Wells, moreover, underscores the adequacy of the
court’s instructions. There, the subject of the defendant’s motion for mistrial was
a witness’s improper testimony that prior to trial the defendant had been offered
“a plea offer” (which he presumably rejected). 739 F.3d at 532. In upholding the
district court’s denial of the motion, we observed that the court’s “curative
instruction . . . was ‘clear and concise and pertained to testimonial evidence from
a single witness that was amenable to easy segregation in the minds of the jury.’”
Id. at 533 (quoting Caballero, 277 F.3d at 1243). Yet, that instruction simply
stated: “Ladies and gentlemen, disregard that last answer. I’ll strike it from the
record. We’re getting into an area that’s not proper for jury consideration.” Id. at
532. Recognizing (as we do) that the adequacy of instructions must be
understood in light of all of the circumstances of a particular case, it nevertheless
would strain credulity to believe that, after endorsing this brief curative
instruction in Wells, this court should conclude here that the district court’s
broadly protective instructions—that obliged the jury to completely disregard the
stolen-gun testimony and any inferences related to it—were not sufficiently clear
or otherwise adequate to cure any prejudice. Notably, Mr. Hargrove’s reply brief
does not respond to the government’s similar argument based on Wells.
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specifically cautioned the jury that the stolen-gun testimony was not relevant to
its consideration of the charged crimes:
[W]hat’s before you are the two charges, conspiracy and
possession with intent on the marijuana. There isn’t any charge
related to firearms, their ownership, and it would be
inappropriate for you to consider those facts in addressing the
facts that are actually in front of you and the elements of the
charges that are actually in front of you.
R., Vol. III, at 284. But in virtually the same breath the court spoke more
broadly, saying “please disregard any thought or connection relating to the
ownership of that firearm.” Id. at 284–85 (emphasis added). And this advisement
must be read in the context of court’s earlier instructions to the jury, which made
plain that it must “disregard anything regarding that firearm or its ownership.”
Id. at 284 (emphasis added). Thus, the district court’s instructions here actually
cast a wider protective net than the ones that we approved of in Meridyth.
Captured within this net was precisely the concern that Mr. Hargrove points to
here—viz., the concern that the jury might infer that he had criminal propensities
from the stolen nature of the firearm. Taking all of these instructions into
account, we are hard-pressed to understand how a reasonable jury could have not
understood that, not only could it not consider the stolen-gun testimony in finding
him guilty of the charged offenses, but it also could not use this testimony for any
In sum, Mr. Hargrove’s arguments based on the trial court’s
7 In any event, we question what material prejudice Mr. Hargrove
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instructions in Meridyth are unavailing.
Lastly, Mr. Hargrove’s reliance on our decision in Hardwell is another
wrong note in Mr. Hargrove’s tune of criminal-propensity error, which we may
address in short order. Specifically, Mr. Hargrove turns to Hardwell to support
his contention that the district court erred by not sua sponte specifically
instructing the jury to disregard any inference arising from the stolen-gun
testimony that Mr. Hargrove had a propensity to commit crimes. In this regard,
quoting from Hardwell, 80 F.3d at 1491, Mr. Hargrove notes that we have
“previously held that a district court committed error by failing to advise the jury
. . . in a limiting instruction” that prior uncharged misconduct cannot be used as
proof of criminal propensity. See Aplt.’s Opening Br. at 30 (quoting Hardwell’s
observation that “the court’s instructions did not expressly advise the jury that it
could not consider prior misconduct as proof of criminal disposition or
propensity, which is what Rule 404(b) is intended to prevent”).
However, Hardwell is inapposite: it expressly relates to a district court’s
could claim even if the jury did feel free to infer from the stolen gun-testimony
that he had criminal propensities, so long as it also felt obliged to honor the
court’s instructions not to use this inference in determining whether he was guilty
of the charged offenses. Put another way, even if the court’s instructions gave the
jury the leeway (which they did not) to infer from the stolen-gun testimony that
Mr. Hargrove had tendencies to be a scofflaw, it is hard to see how Mr. Hargrove
could have been materially prejudiced by such an inference, if the jury stayed true
to the court’s instructions and did not use this inference in determining his guilt
of the charged offenses.
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failure to employ appropriate limiting instructions in admitting prior wrongfulacts evidence under Federal Rule of Evidence 404(b), and on appeal “[a]ll four
defendants contend[ed] the trial court abused its discretion by admitting evidence
of prior bad acts” under that rule. 80 F.3d at 1488. The evidence before the jury
was admissible for some purposes, but not others. Id. at 1491 (“[A]lthough it
could consider the evidence of Dennis’ and Marcel’s prior misconduct as proof of
the money laundering charge and 1992 cocaine sale charges, it could not consider
that evidence as proof of the conspiracy, except to the extent that it proved
intent.”). Here, on the other hand, the district court did not admit the disputed
testimony for any purpose; it expressly excluded it. Therefore, there was no need
for the court to even consider providing a more specific limiting instruction
regarding the testimony, as in Hardwell. Under the district court’s instructions,
the jury could not consider the stolen-gun testimony for any purpose—full stop.
Hardwell is thus inapposite.
Accordingly, because the district court’s instructions unequivocally
admonished the jury that it could not consider the testimony or any inferences
stemming from it, and because it is permissible to presume here that the jurors
followed the court’s instructions, see Lamy, 521 F.3d at 1266, this factor weighs
heavily in the government’s favor.
Finally, we consider whether the improper remark was inconsequential in
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light of the other evidence of the defendant’s guilt. See Meridyth, 364 F.3d at
1183. This factor strongly undermines Mr. Hargrove’s position and, combined
with the two other factors discussed above, firmly closes the door on his mistrial
The crux of Mr. Hargrove’s argument is that the improper stolen-gun
testimony “completely reframed the way the jury viewed [him],” Aplt.’s Opening
Br. at 33, because “the jury would [have] likely view[ed] him as a ‘bad’ man, the
kind of man that would [have been] involved in a scheme to possess and distribute
marijuana – without regard to the actual evidence presented,” id. at 32–33.
However, the weight of the “actual evidence” against Mr. Hargrove—which
undermined his defense theory that he had no knowledge of the drug-trafficking
activity afoot—would have rendered any prejudice from the stolen-gun testimony
Although the trial presented considerable evidence that pointed towards Mr.
Hargrove’s guilt, we need not detail it all here. That is because, even standing
alone, two lines of unchallenged evidence clearly incriminated Mr. Hargrove in
the charged drug trafficking, and a reasonable jury could have concluded that this
evidence convincingly belied Mr. Hargrove’s defense theory predicated on his
unawareness of that activity. More specifically, without more, these two lines of
evidence established that “nothing about [the Border Patrol agent’s improper]
comment changed the basic nature of [Mr. Hargrove’s] trial.” United States v.
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Kravchuk, 335 F.3d 1147, 1155 (10th Cir. 2003).8
First, and perhaps most damning, is the testimony from one of the
backpackers, Mr. Silvas-Hinojos. During trial, Mr. Silvas-Hinojos testified that
Mr. Hargrove himself met the backpackers when they arrived and personally took
marijuana that Mr. Silvas-Hinojos was carrying; that Mr. Hargrove arranged the
bundles of marijuana on the bed of the truck and covered the bundles with a tarp;
and that Mr. Hargrove put one bundle of marijuana in the backseat of the truck
because the stack of bundles in the truck bed was “too high.” R., Vol. III, at
310–13. Significantly, Mr. Silvas-Hinojos’s testimony on these matters was left
entirely without specific challenges during the course of the trial. As such, that
undisputed testimony unequivocally indicated that Mr. Hargrove knew of and
actively participated in the drug exchange, undercutting his defense theory and
8 In assessing the weight of the government’s evidence and the related
effect of the agent’s improper stolen-gun testimony, we do not factor into the
calculus the dubious testimony of Mr. Hargrove’s co-defendant, Ms. Richter. The
government asserts that Ms. Richter’s testimony undermines Mr. Hargrove’s
defense theory because she testified that Mr. Hargrove was the one who arranged
the marijuana deal. To be sure, Ms. Richter, during her direct examination, did
finger Mr. Hargrove as the brains behind the operation. However, we question
the reliability of this ostensibly incriminating testimony because Ms. Richter
admitted that she had taken full responsibility for all of the events that occurred
and wholly exculpated Mr. Hargrove in her plea agreement. See R., Vol. III, at
97 (testifying that she (i.e., Ms. Richter) had previously stated that she, and not
Mr. Hargrove, had planned the drug transaction and that she planned it because
she was in need of money). Given that the two lines of unchallenged evidence
discussed above unequivocally pointed the jury to Mr. Hargrove’s
guilt—rendering the effect of the agent’s improper stolen-gun testimony
inconsequential—we need not rely on Ms. Richter’s dubious testimony to support
our analysis here.
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pointing directly toward a guilty verdict. Notably, Mr. Hargrove likewise fails to
address the significance of this testimony on appeal.
Second, the government presented testimony from numerous agents
throughout trial that Mr. Hargrove’s defense that he thought the marijuana (all
297 pounds of it) was alfalfa was incredible because alfalfa and marijuana smell
nothing alike and are packaged in entirely distinct ways. See, e.g., id. at 47 (“Q.
Did you notice anything when [Ms. Richter] rolled down the window? A. I could
immediately smell the smell of marijuana. Q. Have you spent any time around
alfalfa, [agent]? A. A little bit. My aunt had a cattle farm down in Mexico,
growing up. I’ve been around it. And also, through the work here, I’ve seen it.
Q. Does it smell anything like marijuana? A. No, it does not.”); see also id. at
65–66 (testifying that alfalfa is not packaged the same way as marijuana:
“[Alfalfa is] actually not packaged. It’s kind of bounded [sic] together by wire.
As far as I know, they try to keep all the moisture out of it because if it gets wet
or whatever . . . it spoils, so . . . they try to keep it open-air”); id. at 66–67 (“Q.
And in your 12 years as a law enforcement officer, have you encountered a lot of
marijuana? A. Yes, sir. Q. Do you know what marijuana smells like? A. I do.
Q. In your experience, does alfalfa smell like marijuana? A. Not at all”); id. at
238 (after testifying that the marijuana was packaged in bundles, an agent further
testifying: “Q. Have you seen alfalfa before? A. Yes, sir, I have. Q. In your
experience, how is alfalfa packaged? A. Usually, three strand wires, maybe four
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strands, sometimes twine”). The ample testimony on this front would have made
patent to the jury that Mr. Hargrove’s defense was based on a far-fetched
assertion that he mistakenly believed that the marijuana was alfalfa. Again, Mr.
Hargrove does not raise any specific challenge to this testimony on appeal.
Thus, we believe that these two lines of evidence, taken by themselves,
strongly and convincingly directed the jury to a guilty verdict. Therefore, we are
quite confident that any “improper effect [the Border Patrol agent’s] intimations
may have had on the jury . . . pales in comparison to the total weight of the
government’s evidence.” Lamy, 521 F.3d at 1266. Accordingly, we conclude that
this factor too weighs in favor of affirming the district court’s denial of Mr.
Hargrove’s motion for mistrial.
* * *
In light of the above analysis, and given that all three factors of the
Meridyth test weigh in favor of the government, we conclude that the district
court did not abuse its discretion in denying Mr. Hargrove’s motion for a mistrial.
We now turn to Mr. Hargrove’s second challenge: he contends that the
district court erred when it did not grant him a U.S.S.G. § 5C1.2 safety-valve
adjustment during sentencing. More specifically, Mr. Hargrove argues that the
district court “erred by considering only Mr. Hargrove’s possession of the
firearms and their and his proximity to the marijuana, without taking into account
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Mr. Hargrove’s own conduct.” Aplt.’s Opening Br. at 7. We disagree and affirm
the district court’s safety-valve ruling. In the following discussion, we recount
(1) the district court’s ruling, (2) our standard of review, (3) the legal framework
governing our analysis, and (4) how that framework applies in this case.
Generally, the district court evaluated whether Mr. Hargrove possessed the
firearms “in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), by looking to
their “proximity and potential to facilitate the offense.” R., Vol. I, at 24 (quoting
United States v. Andrade-Vargas, 459 F. App’x 762, 767 (10th Cir. 2012)
(unpublished)). Applying that rubric, the district court concluded that Mr.
Hargrove was not eligible for the safety-valve reduction because (1) the firearms
were located “in the cab of the pickup truck with Defendant and the marijuana,”
and thus were in close proximity to the drug trafficking, and (2) the firearms “had
the potential” to facilitate the drug trafficking, even if the firearms did not do so
More specifically, the district court highlighted several facts in support of
its decision, including: that Mr. Hargrove, the drugs, and both guns were all in the
cab of the pickup truck—with the pistol on the dashboard and the rifle behind the
front seat; that both guns were loaded; and that Mr. Hargrove evinced knowledge
of the location of the guns, since he voluntarily told the agents about them. The
court expressly took note of Mr. Hargrove’s exculpatory statements “that he had
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no knowledge of the marijuana, he was in the area to fish, and he thought the
bundles of marijuana were alfalfa,” but effectively declined to credit those
statements, finding instead that “[t]he presence of firearms was not coincidental
or entirely unrelated to the drug transaction.” Id. at 22, 24; see also id., Vol. III,
at 8 (regarding the presence of the guns, the district court stated: “If I’m going to
my first big drug deal in Rodeo -- in a farm outside Rodeo, New Mexico, in the
dark of the night with a bunch of guys, backpackers, coming over the hill, I might
think I needed to be protected”). In sum, the district court determined that Mr.
Hargrove “ha[d] not met his burden by a preponderance of the evidence to
demonstrate eligibility for the safety valve” and thus he was “subject to the
statutory mandatory minimum sentence of 60 months.” Id., Vol. I, at 24.
We review the district court’s denial of U.S.S.G. § 5C1.2 safety-valve
relief for clear error, “giving due deference to the district court’s application of
the Sentencing Guidelines to the facts.” United States v. Zavalza-Rodriguez, 379
F.3d 1182, 1184 (10th Cir. 2004). “Clear error exists if a factual finding ‘is
wholly without factual support in the record, or after reviewing the evidence, we
are definitively and firmly convinced that a mistake has been made.’” United
States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (quoting United States v.
Ivory, 532 F.3d 1095, 1103 (10th Cir. 2008)). And this deferential standard of
review “applies equally regardless of whether the district court’s factual findings
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are based on credibility determinations or on documentary evidence.” La
Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009);
accord United States v. Little, 60 F.3d 708, 713 (10th Cir. 1995); see also United
States v. Galvon-Manzo, 642 F.3d 1260, 1270–71 (10th Cir. 2011) (observing, in
analyzing defendant’s challenge to safety-valve determination, that although
district court’s evaluation of attorney reports did not evaluate the defendant’s
credibility “in the typical sense, the court was considering the truthfulness and
‘credibility’ of all the information he provided in various ways to the government
and to the court,” and declining to disturb the district court’s “obvious”
determination that defendant was not trustworthy).
Congress has enacted mandatory-minimum sentencing provisions for many
different crimes, including the drug-trafficking offenses at issue here. See, e.g.,
21 U.S.C. §§ 841(a)(1), (b)(1)(B). However, Congress has “refine[d]” the
operation of those mandatory-minimum provisions for “the least culpable
participants” in federal drug-trafficking offenses by creating an exception to
mandatory-minimum sentences, known as the safety valve, which applies when
defendants meet certain criteria. H.R. REP. NO. 103-460, at 3 (1994), 1994 WL
107571; see 18 U.S.C. § 3553(f); see also United States v. Pena-Sarabia, 297
F.3d 983, 988 (10th Cir. 2002) (“The basic purpose of the safety valve was ‘to
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permit courts to sentence less culpable defendants to sentences under the
guidelines, instead of imposing mandatory minimum sentences.’” (quoting
Acosta-Olivas, 71 F.3d at 378)); accord United States v. Brooks, 722 F.3d 1105,
1108 (8th Cir. 2013) (“In the safety valve statute and parallel advisory guidelines
provision, ‘Congress provided relief for less culpable drug offenders from its
harsh mandatory minimum sentences.’” (quoting United States v. Tournier, 171
F.3d 645, 646 (8th Cir. 1999))).
At Congress’s direction, the Sentencing Commission has inserted the safety
valve provision into the Guidelines. See U.S.S.G. § 5C1.2, cmt. background.
Section 5C1.2(a) provides relief under the safety valve if the defendant can meet
the following criteria:
(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines before
application of subsection (b) of §4A1.3 (Departures Based on
Inadequacy of Criminal History Category);
(2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the
(3) the offense did not result in death or serious bodily injury to
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the
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defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the
offense or offenses that were part of the same course of conduct
or of a common scheme or plan, but the fact that the defendant
has no relevant or useful other information to provide or that the
Government is already aware of the information shall not
preclude a determination by the court that the defendant has
complied with this requirement.
§ 5C1.2(a)(1)–(5) (emphases added).9
The defendant bears the burden of
satisfying all five criteria by a preponderance of the evidence. United States v.
Verners, 103 F.3d 108, 110 (10th Cir. 1996). If the defendant satisfies all five
criteria, the sentencing “court shall impose a sentence without regard to a
statutory minimum.” Zavalza-Rodriguez, 379 F.3d at 1185.
Here, only the second criterion—whether Mr. Hargrove “possess[ed] a
firearm . . . in connection with the offense”—is at issue because the government
has conceded that Mr. Hargrove otherwise qualifies for the safety valve. We note
three principles informing what it means to possess a firearm “in connection with
the offense,” before summarizing one case particularly important to our analysis.
First, we have held that a firearm is possessed “in connection with the
offense” if the firearm facilitates or, as relevant here, has the “potential to
facilitate” the offense. United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996),
9 These five criteria replicate the relevant statute’s requirements. See
18 U.S.C. § 3553(f)(1)–(5).
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overruled on other grounds by Pena-Sarabia, 297 F.3d at 989 & n.2 (overruling
by an en banc footnote). Hallum’s “facilitate or potential to facilitate” concept
arose out of statutory and Guidelines provisions that are analogous to the firearms
component of the safety-valve provision. For example, we interpreted similar
language in the Guidelines enhancement for defendants who possess a firearm “in
connection with another felony offense” as applying when “the weapon facilitates
or has the potential to facilitate . . . the offense.” United States v. Walters, 269
F.3d 1207, 1219 (10th Cir. 2001) (quoting United States v. Gomez-Arrellano, 5
F.3d 464, 466–67 (10th Cir. 1993)).10
In doing so, we relied on the Supreme Court’s interpretation of whether a
firearm was used “in relation to” an offense in Smith v. United States, 508 U.S.
223, 238 (1993), partially abrogated on other grounds by Bailey v. United States,
516 U.S. 137 (1995). See Gomez-Arrellano, 5 F.3d at 466–67. In Smith, the
Supreme Court had interpreted the “in relation to” language as requiring that “the
gun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug
10 Walters and Gomez-Arrellano both addressed previous iterations of
U.S.S.G. § 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (1992) (“If the defendant
used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or possessed in connection with
another felony offense, increase by 4 levels. If the resulting offense level is less
than level 18, increase to level 18.”); U.S.S.G. § 2K2.1(b)(5) (1998) (same); see
also Walters, 269 F.3d at 1218; Gomez-Arrellano, 5 F.3d at 466. The Guidelines
applicable at the time of the offense contained similar language. U.S.S.G. §
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trafficking offense.” 508 U.S. at 238 (quoting United States v. Stewart, 779 F.2d
538, 539 (9th Cir. 1985) (Kennedy, J.), overruled in part on other grounds, as
recognized in Muscarello v. United States, 524 U.S. 125, 137 (1998)).11 Thus, in
light of the foregoing, we should consider Mr. Hargrove’s possession of the
firearms to have been “in connection with the offense” only if the firearms
facilitated or had the potential to facilitate the offense.
Second, we have focused on “the defendant’s own conduct” in evaluating
his eligibility for safety-valve relief. Zavalza-Rodriguez, 379 F.3d at 1186.
Thus, for example, we have ruled that proof of “a joint criminal actor’s
reasonably foreseeable possession of a firearm” is not “sufficient to foreclose” a
defendant from receiving safety-valve relief. Pena-Sarabia, 297 F.3d at 988–89
& n.2 (overruling Hallum “to the extent it is inconsistent with th[is] rule” of law).
This focus on a defendant’s own conduct is fully in accord with the Sentencing
Commission’s commentary, which ordinarily controls our interpretation of the
advisory Guidelines. See United States v. Gieswein, 887 F.3d 1054, 1058 (10th
11 Though the Hallum panel did not expressly mention the historical
origins of the “potential to facilitate” linguistic formulation, other panels of this
court, albeit in unpublished decisions, have recognized its historical roots. See
United States v. Archuleta, 257 F. App’x 116, 123 (10th Cir. 2007) (unpublished)
(connecting Hallum’s “potential to facilitate” language with Walters, 18 U.S.C. §
924(c)(1), and U.S.S.G. § 2K2.1(b)(5)); see also United States v. Castaneda
Ascencio, 260 F. App’x 69, 71–72 (10th Cir. 2008) (unpublished) (quoting and
affirming the district court’s statement that Gomez-Arrellano’s “analysis is
applicable to the application of Sentencing Guideline Section 5C1.2,” before
relying on Hallum’s “potential to facilitate” language).
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Cir.) (noting that the Guidelines “commentary from the Sentencing Commission is
‘authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline’” (quoting
Stinson v. United States, 508 U.S. 36, 38 (1993))), cert. denied, 139 S. Ct. 279
(2018); accord United States v. Lucero, 747 F.3d 1242, 1247 (10th Cir. 2014).
As relevant here, the Commission expressly “limit[ed] the accountability of the
defendant to his own conduct and conduct that he aided or abetted, counseled,
commanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4
Third and relatedly, Zavalza-Rodriguez emphasized that “possession in
§ 5C1.2(a)(2) is an active possession whereby there is a close connection linking
the individual defendant, the weapon and the offense.” 379 F.3d at 1187
Zavalza-Rodriguez offers helpful instruction regarding the contours of the
“own conduct” and “active possession” principles described supra. Therefore, we
turn to look at Zavalza-Rodriguez in more depth.
Zavalza-Rodriguez discussed these two principles in explaining why the
firearms provision of the safety valve is materially distinct from a related firearms
enhancement in § 2D1.1(b)(1). That Guideline provides for an offense-level
enhancement for certain convicted drug traffickers “[i]f a dangerous weapon
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(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In
Zavalza-Rodriguez, police officers found the defendant in a home that contained
narcotics, material used to package narcotics, five firearms, and a large amount of
cash. 379 F.3d at 1184. The officers found one of the firearms, a loaded
semiautomatic pistol, in the room where the defendant was staying. Id. The
home was owned by a third party who also was involved in selling narcotics, and
the defendant claimed that he had only spent one night in the home. Id.
In his plea agreement, the defendant had stipulated to a sentencing
enhancement pursuant to § 2D1.1(b)(1), which applies when “a dangerous weapon
(including a firearm) was possessed,” based on the presence of the pistol;
however, the defendant separately argued that he was eligible for the safety valve
because the gun was not possessed “in connection with” the offense within the
meaning of § 5C1.2. Id. In particular, while the defendant acknowledged that he
had constructively possessed the gun through his knowledge of the gun’s presence
in the bedroom where he stayed, he denied ever actually possessing or even
touching the gun. Id. at 1184–85. The district court accepted this argument, and
held the defendant was eligible for the safety valve, because there was a lack of
evidence connecting the defendant to the gun. Id. at 1184.
We affirmed. To start, we “explain[ed] that while a § 2D1.1(b)(1) sentence
enhancement applies to a defendant for a co-conspirator’s possessing a weapon, a
defendant is not precluded from receiving a safety valve reduction [in the context
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of such a conspiracy] based on the defendant’s individual conduct,” if that
conduct does not run afoul of the firearms component of the safety-valve
provision. Id. at 1186 (emphasis added); see also id. (noting that, “[a]lthough
conspiracy was not charged in the information, [the defendant’s] situation is
closely analogous to the facts of these cases”). This is because in evaluating the
safety-valve provision, unlike § 2D1.1(b)(1), we focus on the defendant’s “own
conduct” and “recognize a distinction between constructive and actual
possession.” Id. Thus, while a co-conspirator’s possession of a firearm might
satisfy § 2D1.1(b)(1), the Guidelines commentary to the safety-valve provision
limits a defendant’s accountability to his “own conduct.” U.S.S.G. § 5C1.2 cmt.
As for “active possession” of a firearm—which, as noted, entails a “close
connection linking the individual defendant, the weapon and the offense”—we
reasoned that this requirement prevents mere constructive possession (without
more) from satisfying the safety-valve provision, though it might satisfy
§ 2D1.1(b)(1). Zavalza-Rodriguez, 379 F.3d at 1186–87.12 However, we
specifically distinguished situations involving mere constructive possession, as in
Zavalza-Rodriguez, from those where a defendant acknowledged actual
12 See also United States v. Gutierrez-Casillas, 140 F. App’x 26, 28
(10th Cir. 2005) (unpublished) (“We concluded [in Zavalza-Rodriguez] that
§ 2D1.1(b)(1) merely requires ‘constructive possession,’ based on proximity of
the gun, whereas § 5C1.2 requires ‘actual possession,’ which is characterized by a
closer degree of connection.” (quoting Zavalza-Rodriguez, 379 F.3d at 1186–88)).
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possession of a firearm. Id. at 1186 n.2. Taking note of our prior precedent,
especially Hallum, we acknowledged that, when a defendant “did not argue that
the gun was not actually his nor that it was merely constructively possessed,” “a
gun’s proximity and potential to be used in connection with the offense” may well
be sufficient to bar safety-valve relief. Id. (citing Hallum, 103 F.3d at 89).13
13 We made this acknowledgment in the course of harmonizing the
principles announced in Zavalza-Rodriguez with our prior precedent, most notably
in Hallum, where we held that “a firearm’s proximity and potential to facilitate
the offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2),” 103 F.3d
at 89. See Zavalza-Rodriguez, 379 F.3d at 1186 n.2. Because “[i]n cases of
conflicting circuit precedent our court ‘follow[s] earlier, settled precedent over a
subsequent deviation therefrom,’” United States v. Sabillon-Umana, 772 F.3d
1328, 1334 n.1 (10th Cir. 2014) (quoting Haynes v. Williams, 88 F.3d 898, 900
n.4 (10th Cir. 1996)), it was incumbent upon the Zavalza-Rodriguez panel to
explain why the dimensions of the safety-valve provision that it outlined were
congruent with our earlier decision in Hallum. In other words, we recognized that
Hallum was the law of this circuit. And, rather than purporting to overrule any
portion of it, as we did in Pena-Sarabia, 297 F.3d at 989 & n.2, the
Zavalza-Rodriguez panel endeavored—as principles of stare decisis dictated—to
harmonize its articulation of the safety-valve’s dimensions with Hallum’s holding
that a firearm’s proximity and potential to facilitate the offense may be
determinative. Given that this harmonization endeavor was a necessary step in
establishing the legitimacy and integrity of Zavalza-Rodriguez’s holding, we are
entirely unpersuaded by Mr. Hargrove’s assertion that Zavalza-Rodriguez’s
discussion of Hallum amounted to no more than non-binding dicta. See Aplt.’s
Opening Br. at 15 n.5 (contending that in Zavalza-Rodriguez “the Court did not
need to consider—and did not consider—whether its opinion had an impact on
Hallum, and its discussion of Hallum is nothing more than dicta”). Compare
Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953,
953 (2005) (“A holding consists of those propositions along the chosen decisional
path or paths of reasoning that are actually decided, are based upon the facts of
the case, and lead to the judgment. A proposition in a case that is not holding is
dicta.” (emphasis added)), with Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184
(10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion concerning
some rule of law or legal proposition not necessarily involved nor essential to
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In other words, in the parlance of Zavalza-Rodriguez, in those
circumstances a court may find that a defendant “actively possessed” the firearm.
379 F.3d at 1188. This makes sense. Where a defendant’s actual possession is
undisputed, the sentencing court may find—by focusing on the defendant’s own
conduct—the close connection that active possession requires between the
defendant and the firearm. As Zavalza-Rodriguez suggests, in a scenario of
constructive possession, ordinarily more would be required to establish such a
close connection. Compare id. at 1186 (noting that “we focus on the defendant’s
own conduct for purposes of evaluating eligibility for the safety valve, and that
we recognize a distinction between constructive and actual possession”), with
Andrade-Vargas, 459 F. App’x at 764, 768 (declaring “mistaken” the notion that
Zavalza-Rodrigruez held that “one must have actual physical possession of the
firearm to make him ineligible for a safety valve reduction” and ruling in a
circumstance where the defendant argued that “no evidence showed anyone saw
him possessing a firearm” that constructive possession was sufficient to establish
the active possession that Zavalza-Rodriguez requires, where the defendant had
“knowledge and control of the firearms found in the bedroom he rented and had
exclusive control over”). And, once the close connection between the defendant
and the firearm is established, proof that the firearm was in close proximity to the
determination of the case in hand.’” (emphasis added) (quoting Dicta, BLACK’S
LAW DICTIONARY (6th ed. 1990)).
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offense and had the potential to facilitate the offense would round out the features
of Zavalza-Rodriguez’s “active possession” requirement by demonstrating the
close connection between the firearm and the offense. See United States v.
Payton, 405 F.3d 1168, 1171 (10th Cir. 2005) (noting, where defendant actually
possessed the firearms, that “[t]he mere propinquity of the weapons and drugs
suggests a connection between the two”).
In sum, our cases teach that a firearm is used “in connection with an
offense” when it facilitates or has the “potential to facilitate” that offense.
Hallum, 103 F.3d at 89. The focus of our inquiry is “the defendant’s own conduct
for purposes of evaluating eligibility for the safety valve.” Zavalza-Rodriguez,
379 F.3d at 1186 (emphasis added). And the kind of firearms possession that bars
application of the safety valve is “active possession whereby there is a close
connection linking the individual defendant, the weapon and the offense.” Id. at
1187. Lastly, in circumstances where the defendant’s own conduct evinces actual
possession of the firearm, we have recognized that active possession may be
shown by evidence of “[that] firearm’s proximity and potential to facilitate the
offense.” Hallum, 103 F.3d at 89; see Zavalza-Rodriguez, 379 F.3d at 1186 n.2.
As noted, Mr. Hargrove contends that the district court “erred by
considering only Mr. Hargrove’s possession of the firearms and their and his
proximity to the marijuana, without taking into consideration Mr. Hargrove’s own
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conduct—a consideration required by this Court’s authorities.” Aplt.’s Opening
Br. at 7. However, under the legal principles discussed above, Mr. Hargrove’s
argument cannot prevail.
In Zavalza-Rodriguez, we expressly acknowledged that when a defendant
concedes actual possession of a firearm (as opposed to mere constructive
possession), the requirement of active possession—based on defendant’s own
conduct—may be rounded out and completed by further evidence that the
possessed firearm was in close proximity to the offense and had the potential to
facilitate it. See 379 F.3d at 1186 n.2. Accordingly, contrary to Mr. Hargrove’s
assertion, on these facts—where Mr. Hargrove freely admitted that the firearms
belonged to him and indicated that he had brought them in the vehicle to the
scene of his arrest—the district court’s express focus on the firearms’ proximity
and potential to facilitate the offense did not reflect an analytical disregard of Mr.
Hargrove’s own conduct.
Indeed, Mr. Hargrove’s admissions regarding possession of the firearms
placed his own conduct front and center, and they were the jumping-off point for
the court’s further inquiries into proximity and facilitation. In other words, by
focusing on Mr. Hargrove’s admissions regarding his own conduct, the court
could discern that Mr. Hargrove actually possessed the firearms at some point
during the trip—at least likely so at the trip’s beginning, when the firearms were
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placed in the vehicle—and had the firearms in close proximity to him thereafter,
including at the time of his arrest. These admissions were sufficient to establish
the close connection required for active possession between Mr. Hargrove and the
firearms. At that point, the court was left with the task of determining whether
the requisite close connection existed between the firearms and the offense, so as
to establish active possession. As Zavalza-Rodriguez acknowledged, this close
connection—under circumstances such as these—could be established where the
firearm was in close proximity to and had the potential to facilitate the offense.
See 379 F.3d at 1186 n.2.
And that was certainly true here. As noted, the district court specifically
found (1) that the firearms were located “in the cab of the pickup truck with
Defendant and the marijuana,” and thus were in close proximity to the drug
trafficking, and (2) that the firearms—which were loaded—“had the potential” to
facilitate the drug trafficking, even if the firearms did not do so directly. R., Vol.
I, at 24. There is ample evidence in the record to support these factual findings.
And it is well established that firearms are “‘tools of the trade’—that is, means
for the distribution of illegal drugs.” United States v. Martinez, 938 F.2d 1078,
1083 (10th Cir. 1991) (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.
1976)); accord United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012); see
also United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir. 2008) (noting that
“evidence of Defendant’s firearm possession would have been admissible to prove
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his intent to distribute marijuana”). Firearms are used by drug traffickers (among
other things) to protect themselves from other criminals and to safeguard their
valuable narcotics from theft. See, e.g., United States v. Lott, 310 F.3d 1231,
1248 (10th Cir. 2002) (“We conclude that the placement of a loaded,
semi-automatic weapon on the driver’s seat of the car in which the
instrumentalities of methamphetamine manufacturing were also found is sufficient
evidence from which a jury could conclude that the purpose of the gun was to
provide defense or deterrence in furtherance of attempting to manufacture
methamphetamine.”); see also United States v. King, 632 F.3d 646, 657 (10th Cir.
2011) (“Because the loaded rifle in this case was located immediately adjacent to
the drugs, a reasonable jury could infer that it furthered [the defendant’s] drug
trade by protecting [the defendant] and his merchandise.”). Thus, Mr. Hargrove’s
loaded guns certainly had the potential to fulfill this protective purpose and, as
the district court specifically ruled, they had the potential to facilitate the drugtrafficking offense.
To be sure, Mr. Hargrove has argued that his possession of the firearms was
unrelated to the drug-trafficking activity. In this regard, before the district court,
he asserted “that he had no knowledge of the marijuana, he was in the area to fish,
and he thought the bundles of marijuana were alfalfa.” R., Vol. I, at 22.
However, the court effectively discounted these statements in determining that
“[t]he presence of the firearms was not coincidental or entirely unrelated to the
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drug transaction.” Id. at 24.14 And nothing in this record gives us pause in
according this factual determination the customary measure of deference. See,
e.g., Hooks, 551 F.3d at 1217.
Mr. Hargrove repeatedly objects that the district court did not take into
account that there was “no evidence that Mr. Hargrove had ever been involved in
any sort of drug distribution,” Aplt.’s Reply Br. at 14 n.4, and “did not find that
Mr. Hargrove actually used or attempted to use the firearms in any way,” Aplt.’s
Opening Br. at 10. See Aplt.’s Opening Br. at 21 (noting that “Mr. Hargrove has
no criminal history relating to the distribution of drugs or the use of firearms, let
alone at the same time”); Aplt.’s Reply Br. at 17 (“There must be something more
in the way of the defendant’s own conduct (such as evidence the defendant had
been running a drug operation or evidence that the defendant planned to use the
weapon against human beings) that establishes the weapons were connected to the
offense.”). However, Mr. Hargrove cites no Tenth Circuit authority holding that a
defendant’s prior drug-trafficking activities or actual use of the firearm are
necessary to establish active possession—much less that such factors are
14 Panels of this court have frequently declined to credit self-serving
statements about the purpose of a defendant’s firearm possession. See, e.g.,
Andrade-Vargas, 459 F. App’x at 768 (“[I]t is evident that, in denying the
reduction, the district court discredited Mr. Andrade-Vargas’s seemingly
self-serving claims he did not own the handguns and that they were not in the
room for the purpose of facilitating his drug trafficking activities—both of which
were unsupported by any evidence.”); Gutierrez-Casillas, 140 F. App’x at 28
(affirming district court’s decision to “discount” each defendant’s credibility
“by self-interest” (quoting record)).
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determinative.15 In particular, there is nothing in Zavalza-Rodriguez that supports
such a proposition. In fact, we have binding Tenth Circuit authority to the
contrary—that is, where neither prior drug-trafficking activity nor actual use of
the firearm appeared to play any role in our denial of safety-valve relief. See
Hallum, 103 F.3d at 89.
In sum, based on the foregoing, we reject Mr. Hargrove’s argument that the
district court failed to properly focus on his own conduct and, thus, did not
correctly determine his eligibility for safety-valve relief. In our view, the district
court’s ruling is sound and consistent with our caselaw.
A closer inspection of our precedential Hallum decision only serves to
underscore the correctness of our judgment. Indeed, even standing alone,
Hallum—which involved materially similar facts—would arguably be
determinative. In Hallum, officers apprehended Mr. Hallum and two accomplices
who were carrying duffle bags full of marijuana from a marijuana patch to their
vehicles, which were parked “200 to 300 yards” away from the patch. 103 F.3d at
89. After searching the vehicles, the officers found a .22 caliber rifle, which Mr.
15 Mr. Hargrove relatedly asserts that “the precedential authority
requires some affirmative action on the part of a defendant to establish that a
weapon was possessed ‘in connection with the offense.’” Aplt.’s Reply Br. at 11
(emphasis added). But Mr. Hargrove cites no precedential authority to support
this assertion, merely directing us to the plain text of § 5C1.2(a)(2), which is
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Hallum later conceded was his. Mr. Hallum testified that he brought the rifle “to
shoot snakes, and that while he could have used it to protect against another
person he did not have that intention and ‘would have not wanted to.’” Id.
(quoting record). “The district court rejected the essence of Hallum’s testimony,
declaring that if defendants were afraid of and protecting against snakes they
would not have left the rifle in the vehicle some 200 yards from the marijuana
patch.” Id. The district court further found that “the weapon was close to the
marijuana cultivation activity, and accessible.” Id. (quoting record).
We affirmed the district court’s denial of Mr. Hallum’s safety-valve
request. We deemed it significant that Mr. Hallum admitted that he had the gun
“for protection.” Id. (quoting record). “This plus the district court’s other
findings . . . establish[ed] proximity of the firearm to the offense.” Id. And, on
these facts, we held that “a firearm’s proximity and potential to facilitate the
offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2).” Id. Notably,
viewed through the prism crafted by our subsequent decision in ZavalzaRodriguez, all of the elements of the requisite active possession were present in
Hallum: Mr. Hallum conceded his actual possession of the firearm, establishing a
close connection between him and the weapon, and the proximity of the firearm to
the marijuana and the evident drug-trafficking activity of Mr. Hallum established
the close connection between the weapon and the offense. See ZavalzaRodriguez, 379 F.3d at 1187. And Mr. Hallum acknowledged that the weapon
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could have been used as protection against other human beings, meaning that it
had the potential to facilitate his drug trafficking. Thus, the district court’s denial
of safety-valve relief should come as no surprise.
Nor should a similar outcome surprise us here. Indeed, Hallum virtually
commands it.16 We begin with proximity. The officers apprehended Mr.
Hargrove in a rural area with almost 300 pounds of marijuana in his pickup truck.
“A [loaded] semi-automatic pistol . . . was on the dashboard and a loaded rifle
was behind the seat.” R., Vol. I, at 21. The district court specifically noted that
“[t]he firearms were located in the cab of the pickup truck with Defendant and the
marijuana.” Id. at 24. The firearms here were thus even closer to Mr. Hargrove
and the illegal narcotics than the firearm in Hallum was to Mr. Hallum.
16 As we previously mentioned, Hallum was overruled in part by an en
banc footnote in Pena-Sarabia, 297 F.3d at 989 & n.2. In the overruled portion
of Hallum, we erroneously applied the principle that “participants in joint
criminal enterprises can be accountable for the foreseeable acts of others that
further the joint activity,” in concluding that Mr. Hallum’s co-conspirators, like
Mr. Hallum, did not qualify for safety-valve relief simply because they “knew of
the presence of the weapon Hallum brought to the marijuana patch; [and] that it
might further their joint activity was reasonably foreseeable.” Hallum, 103 F.3d
at 90. But, importantly, the court’s holding and analysis with respect to Mr.
Hallum, which we explicate in text here, has maintained its vitality. See also
Andrade-Vargas, 459 F. App’x at 767 (noting that “we have continued to rely on
our holding in Hallum that a firearm’s proximity and potential to facilitate the
offense may be sufficient to prevent application of the safety valve provision”);
United States v. Montgomery, 387 F. App’x 884, 888 (10th Cir. 2010)
(unpublished) (relying on Hallum); United States v. McClure, 358 F. App’x 5, 12
(10th Cir. 2009) (unpublished) (same); United States v. Gonzalez-Ambriz, 353 F.
App’x 155, 157 (10th Cir. 2009) (unpublished) (same); Archuleta, 257 F. App’x
at 123 (same).
Appellate Case: 17-2102 Document: 010110104240 Date Filed: 01/02/2019 Page: 55
Further, like Mr. Hallum, Mr. Hargrove “voluntarily informed the agents of
the presence of the firearms when he was seized.” Id. at 21. Mr. Hargrove told
the agents that he had “two weapons inside the vehicle,” the rifle and the pistol.
Id., Vol. III, at 263. In post-arrest statements, Mr. Hargrove “admitted the loaded
rifle and pistol found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5.17 And,
as in Hallum, these admissions supported a finding that Mr. Hargrove actually
possessed the firearms at some point during the trip and had them in close
proximity to him.
Finally, as in Hallum, Mr. Hargrove also ostensibly had the guns for
protection against snakes but the district court effectively discredited that
exculpatory explanation in denying him safety-valve relief. Mr. Hargrove asserts,
however, that Hallum is not “directly analogous” to this case because, even
though Mr. Hallum testified regarding having the firearm for protection against
snakes, the Hallum panel elided the snake explanation and determined that he
“had his gun ‘for protection’ in general, which necessarily implies that it could be
for ‘protection’ from anything, including human beings.” Aplt.’s Reply Br. at 12.
The situation here, as Mr. Hargrove reasons, is different; specifically, the
17 Indeed, in his opening statement, Mr. Hargrove’s counsel told the
jury that Mr. Hargrove and Ms. Richter “have a lot of things in their truck,”
including “a .25 caliber tiny little pistol” and the rifle that Mr. Hargrove “drives
around with.” R., Vol. III, at 204. And, during a bench conference with the
judge, Mr. Hargrove’s counsel plainly admitted that Mr. Hargrove “claimed
ownership of the gun. . . . [H]e claimed ownership about it.” Id. at 278.
Appellate Case: 17-2102 Document: 010110104240 Date Filed: 01/02/2019 Page: 56
evidence indicated that he had the firearms only as protection against snakes.
This line of argument is strained and unpersuasive. It is not remarkable
that the Hallum panel spoke generally of Mr. Hallum having the firearms “for
protection,” without any reference to the snakes justification, because the panel
had credited the district court’s finding that Mr. Hallum’s snake story was
incredible. 103 F.3d at 89 (noting the district court’s statement that “if
defendants were afraid of and protecting against snakes they would not have left
the rifle in the vehicle some 200 yards from the marijuana patch”). As such, Mr.
Hargrove actually is on precisely the same footing as Mr. Hallum because the
district court here also effectively found incredible Mr. Hargrove’s exculpatory
statements about having the guns for protection against snakes, noting specifically
that “[t]he presence of firearms was not coincidental or entirely unrelated to the
drug transaction.” R., Vol. I, at 24. By merely reiterating statements “not found
to be credible” by the district court, Mr. Hargrove is effectively asking “us for a
de novo determination of credibility. [However, that] is not our role.” Payton,
405 F.3d at 1171; see Galvon-Manzo, 642 F.3d at 1270–71; Hooks, 551 F.3d at
In sum, Hallum cogently underscores the correctness of our decision to
uphold the district court’s denial of safety-valve relief to Mr. Hargrove. Indeed,
given the similarity of Hallum’s facts to the instant case, it is arguably
Outcome: In sum, we conclude that the district court did not err in determining that
Mr. Hargrove did not establish a basis for safety-valve relief under U.S.S.G.
Based on the foregoing, we AFFIRM the district court’s judgment
regarding Mr. Hargrove’s conviction and sentence
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