throbber
Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 22, 2025
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`BRUCE HOLDER,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 23-1021
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:18-CR-381-CMA-GPG-1)
`_________________________________
`
`Ann Marie Taliaferro, Brown Bradshaw & Moffat, Salt Lake City, Utah (Benjamin
`Miller, Salt Lake City, Utah, with her on the briefs) for Defendant-Appellant.
`
`Kyle Brenton, Assistant United States Attorney (Matthew T. Kirsch, Acting United States
`Attorney, with him on the brief) United States Attorney’s Office, Denver, Colorado, for
`Plaintiff-Appellee.
`
`_________________________________
`
`Before TYMKOVICH, BALDOCK, and EID, Circuit Judges.
`_________________________________
`
`TYMKOVICH, Circuit Judge.
`_________________________________
`
`Bruce Holder ran a fentanyl distribution ring that distributed thousands of pills
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`in western Colorado. He was tried and convicted of four federal drug crimes,
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`including two predicated on the death and serious injury of buyers of his product.
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 2
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`Holder alleges that his trial was unconstitutional because the district court’s
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`COVID-19 protocols violated his public trial right. He also contends Colorado’s jury
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`pool unreasonably underrepresents members of certain racial groups. Finally, he
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`argues that several counts were constructively amended at trial, and the evidence
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`could not support the jury’s finding that his fentanyl distribution resulted in a
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`victim’s death.
`
`We AFFIRM. The district court’s restrictions were no more restrictive than
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`necessary to protect public health against the perceived harms from COVID-19. Nor
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`did an unreasonable racial disparity exist in the members of the jury pool. The
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`indictment was not constructively amended as no essential elements were altered.
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`Finally, the jury reasonably found that Holder’s fentanyl distribution resulted in a
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`victim’s death.
`
`I.
`
`Background
`
`A.
`
`The Underlying Facts
`
`1.
`
`The Conspiracy
`
`Holder was accused of managing a network of friends and family to distribute
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`fentanyl. He would instruct his friends and family to drive from Grand Junction,
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`Colorado to Sonora, Mexico. While they vacationed in Puerto Peñasco, their cars
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`would be stocked with fentanyl. Each time, more than 2,000 pills would be stashed
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`in hidden compartments in the cars. By the summer of 2017, Holder’s wife, Marie
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`Matos, was making the trip to Mexico every two weeks, bringing back more than
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`50,000 pills.
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 3
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`The pills they brought back were counterfeits that looked like regular
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`oxycodone. They were small, circular, blue, and were stamped with a capital M
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`inside a box on one side and the number thirty on the other. They were made to
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`appear exactly like oxycodone manufactured by Mallinckrodt Pharmaceuticals—the
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`“box M” is Mallinckrodt’s trademark. Holder knew that these were counterfeit pills
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`that contained fentanyl.
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`Holder’s friends and family would distribute the pills. Holder’s circle
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`included his wife, son, daughter, stepdaughter, and several close friends. All of
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`whom testified that Holder was the ringleader of the conspiracy controlling the
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`supply and prices.
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`2.
`
`The Overdoses
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`Zack Green both used and sold Holder’s pills. Green bought pills either from
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`Holder directly or through Holder’s distributor, Christopher Huggett. Holder and
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`Huggett were Green’s only source of pills, and Green knew of no other source for
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`blue fentanyl pills in the area.
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`Green often sold the pills he bought to his coworker, Jon Ellington. On
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`December 26, 2017, Ellington gave Green cash for ten pills. Green then bought
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`twelve pills from Huggett who bought them from Holder. He kept two for himself
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`and delivered the rest to Ellington. Two days later, Green smoked one of those blue
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`pills in his car at work. He took two hits, put the car in drive, and passed out. The
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`assistant manager found Green unconscious when his vehicle hit the building. She
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 4
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`pulled Green from the car and called 911. The paramedics administered Narcan and
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`took Green to the hospital. Green was discharged a few hours later.
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`On the same day as Green’s episode, Ellington’s housemate found him
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`overdosed in his room. Ellington had not shown up for work for two days, and, after
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`receiving a call from Ellington’s employer, his housemate found him slumped over in
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`a chair in his room. Paramedics administered Narcan but could not revive him.
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`Ellington had a syringe in his lap and a tourniquet on the floor between his
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`legs. On his dresser, his housemates found a spoon and cotton ball with blue residue
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`on them. They also found several pill bottles in that dresser. One bottle contained a
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`pill that was the same color blue as the residue. The rough markings the housemates
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`described were later identified as the “box M” consistent with Holder’s fentanyl pills.
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`Other substances were also found in Ellington’s room. Law enforcement found one
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`irregular pill identified as MDMA, a stimulant and psychedelic drug also known as
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`ecstasy, and a tan substance identified as DMT, a powerful psychedelic drug.
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`The toxicology reports pointed to fentanyl as the cause of death. Ellington’s
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`blood tests found a fentanyl concentration of 18 nanograms per milliliter—between
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`six and nine times higher than expected from a typical prescription fentanyl patch.
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`Two coroners concluded that this concentration was the but-for cause of Ellington’s
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`death. Although the defense’s expert forensic pathologist recognized fentanyl
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`intoxication as “a correct cause of death,” she refused to conclude it with certainty
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`because testing was limited. R., Vol. VIII at 1273. She pointed out that the basic
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`toxicology test did not examine Ellington’s urine and did not test for DMT even
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 5
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`though the substance was found in his room. The only substance other than fentanyl
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`the basic test detected was THC.
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`B. Holder’s Prosecution
`
`1.
`
`The Indictment
`
`The second superseding indictment charged six defendants with a total of
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`sixteen counts. Holder went to trial on four counts: (1) conspiracy to distribute 400
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`grams or more of counterfeit fentanyl, (2) distribution of fentanyl resulting in the
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`death of Ellington, (3) distribution of fentanyl resulting in serious bodily injury to
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`Green, and (4) distribution of a counterfeit controlled substance. See 21 U.S.C.
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`§ 841(a)–(b).
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`2.
`
`The Jury Venire
`
`The District of Colorado’s Jury Plan provides that the Master Jury Wheel will
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`come from a source list made up of the Colorado General Election Voter Registration
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`List supplemented by the list of licensed drivers and state-issued adult identification
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`cards. From this “master wheel” jurors are randomly selected for a given grand or
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`petit jury.
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`When the court imports names from the voter registration list, it only imports
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`voters that are marked “active.” A voter is marked “inactive” if mail sent to that
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`voter by the county clerk is returned. When the jury wheel for this trial was last
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`refilled, inactive voters made up 13.94% of all registered voters. R., Vol. II at 961.
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`3.
`
`The Trial
`
`Holder was indicted by a Grand Jury in Grand Junction, Colorado, and was set
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`to be tried there. But Holder’s trial began on March 13, 2020, the same day President
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`Trump declared a national emergency due to COVID-19. Not enough potential jurors
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`showed up to empanel a jury that day. The court and parties worked for over a year
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`to set and reset trial dates while navigating changing pandemic protocols.
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`Eventually, the trial was moved to Denver because the district court
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`determined the Grand Junction courthouse was too small to accommodate a socially
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`distanced jury. The trial finally took place in April 2021, the first pandemic trial in
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`the district. To limit the risk to participants, the Chief Judge of the District of
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`Colorado promulgated a number of protocols governing the trial. Holder was also
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`given the choice between pushing back his trial date or proceeding under the
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`protocols. He chose to go to trial.
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`The jury sat six feet apart in the gallery, while witnesses testified from the jury
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`box. All attendees wore masks. Spectators were also limited. The Arraj Courthouse,
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`where the trial took place, was closed to the public, so spectators had to receive
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`permission from the court to attend. The only spectators who attended the trial were
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`two members of Ellington’s family. Both parties were provided a dial-in number that
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`they could disseminate to those who wanted to listen to the proceedings.
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`Holder filed written objections to the COVID protocols before trial, focused
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`only on the protocols around witness testimony. He requested that witnesses be able
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`to testify from behind a plexiglass screen in the jury box—without a mask.
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 7
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`R., Vol. II at 301–06. The district court denied these requests. Holder did not
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`challenge the access protocols in that motion.
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`He did not object to those protocols until day five of his eight-day trial.
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`Counsel objected to the lack of video access, claiming the public could not view and
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`thus could not assess the exhibits, and that the call-in number had not been made
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`publicly available. The courtroom deputy did not know whether the number was on
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`the court’s website but did confirm that the number was provided to both parties and
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`they were free to disseminate the number to outsiders. The court simply noted
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`Holder’s objections.
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`The jury convicted Holder on all four counts.
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`II. Analysis
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`Holder challenges the COVID protocols, the racial composition of the jury
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`pool, and several legal rulings by the district court. We address each in turn.
`
`A.
`
`Public Trial
`
`The Sixth Amendment provides that “[i]n all criminal prosecutions, the
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`accused shall enjoy the right to a speedy and public trial.” U.S. CONST. amend. VI.
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`We review de novo whether Holder’s constitutional rights were violated. United
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`States v. Addison, 708 F.3d 1181, 1186 (10th Cir. 2013).
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`1. Waiver
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`The district court found that Holder waived his public-trial objection, and the
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`government argues we should do the same. We agree only in part.
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 8
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`In his pretrial written objections to the COVID protocols, Holder did not
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`object to public access to the courthouse or the call-in number. He renewed his
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`written objections on day one of the trial and again failed to object on public-trial
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`grounds. He did not object to the closed courtroom until his trial was half over.
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`By the time he objected, the courtroom was at least partially open. Days one
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`and two of the trial were closed to the public because the entire gallery was needed
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`for prospective jurors. Ellington’s family could not have attended until day three
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`after opening statements and voir dire had already occurred. Holder argues that
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`because these critical stages of the trial took place behind closed doors, his public
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`trial rights were violated.
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`To the extent that Holder challenges the lack of public visual access, that
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`argument is forfeited. He failed to raise the argument before the district court and
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`does not argue plain error here—that is the “end of the road” for his argument.
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`Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). Holder knew
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`before the trial that there would be no in-person or video access. He was given the
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`choice of going to trial under the district’s COVID protocols or waiting until regular
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`trials could resume. He chose the COVID trial and did not object to the lack of
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`visual access before the trial began.
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`Even if we credit Holder’s day-five objection, he cannot show a constitutional
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`violation.
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`2.
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`Total or Partial Closure
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`The right to a public trial is deeply rooted in the Anglo-American legal
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`tradition. See Richard W. Garnett, Public Trial, in THE HERITAGE GUIDE TO THE
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`CONSTITUTION 444, 446 (David F. Forte & Matthew Spalding eds., 2d ed. 2014)
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`(“There was widespread agreement with Sir Edward Coke’s view, expressed in 1607,
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`that a trial is almost by definition open and public.”). “[T]he Sixth Amendment ‘does
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`but follow out the established course of the common law in all trials for crimes. The
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`trial is always public.’” Akhil Reed Amar, Sixth Amendment First Principles,
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`84 GEO. L.J. 641, 678 (1996) (emphasis in original) (quoting 3 JOSEPH STORY,
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`COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1785, at 662
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`(1833)).
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`Even so, the right to a public trial is “not absolute.” Addison, 708 F.3d at 1187
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`(citing Waller v. Georgia, 467 U.S. 39, 46 (1984)). The public access right has been
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`assessed by courts in situations involving both total and partial closures.
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`A total closure occurs when the court excludes “all persons other than
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`witnesses, court personnel, the parties, and the lawyers.” Waller, 467 U.S. at 42. In
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`Waller, the Supreme Court ruled that a total closure to a suppression hearing violated
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`the defendant’s Sixth Amendment right. The point of the public trial right, the Court
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`stated, is “that the public may see [the accused] is fairly dealt with and not unjustly
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`condemned, and that the presence of interested spectators may keep his triers keenly
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`alive to a sense of their responsibility and to the importance of their functions.” Id.
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`at 46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)).
`9
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 10
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`To that end, total closures “must be no broader than necessary to protect that
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`interest, the trial court must consider reasonable alternatives to closing the
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`proceeding, and it must make findings adequate to support the closure.” Id. at 48.
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`Any closure short of total is partial. See Nieto v. Sullivan, 879 F.2d 743, 753
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`(10th Cir. 1989) (finding a partial closure where only the defendant’s relatives were
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`excluded). When a closure is only partial, the defendant’s public trial right “gives
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`way” so long as there is a “substantial reason” for the public restrictions. Addison,
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`708 F.3d at 1187 (internal quotations omitted).
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`We recently examined a COVID courtroom closure protocol and ratified a
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`total closure during the pandemic. In United States v. Veneno, 107 F.4th 1103, 1112
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`n.1 (10th Cir. 2024), we considered whether an audio and video feed of an otherwise
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`closed courtroom was a total or partial closure. No matter how the closure was
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`framed, we ruled that it was justified. Id. at 1112. We noted that the district court,
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`the parties, and the Supreme Court all accepted the COVID pandemic as an
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`overriding interest. Id. at 1113 n.2 (citing Roman Cath. Diocese of Brooklyn v.
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`Cuomo, 592 U.S. 14, 18 (2020) (per curiam)). We explained that given the
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`overriding interest in protecting public health, the district court’s decision to close
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`the courtroom to the public and seat the jury in the gallery was “eminently
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`reasonable.” Id. at 1114. In short, “the district court properly analyzed the closure,
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`correctly found an overriding interest justifying closure, appropriately determined the
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`closure was no broader than necessary, and reasonably concluded no reasonable
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`alternatives existed.” Id. at 1114. The defendant argued that the district court could
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 11
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`have saved room for the public, the press, or his family, but we ruled that “[a]lthough
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`the district court could possibly have made room for a few members of the public,
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`doing so was not necessarily reasonable at the height of the pandemic.” Id. Even the
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`dissent agreed “[t]here is no question the pandemic qualified as an overriding interest
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`justifying closure.” Veneno, 107 F.4th at 1120 (Rossman, J., dissenting in part;
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`arguing that the court should have allowed video access during voir dire).
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`Those justifications apply here. First, the closure (after jury selection and
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`opening) in this case is only partial. As we explained, a total closure occurs only
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`when the court “excludes all persons besides ‘witnesses, court personnel, the parties,
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`and the lawyers.’” Veneno, 107 F.4th at 1112 (quoting Waller, 467 U.S. at 42). Even
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`a few attendees other than the parties creates a closure that is only partial. By way of
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`contrast, in Presley v. Georgia, the trial court excluded the lone observer from voir
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`dire and the Supreme Court treated that case as a total closure. Presley v. Georgia,
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`558 U.S. 209, 213–14 (2010). If excluding the lone observer creates a total closure,
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`then it follows that allowing even a lone observer may render a closure partial. See
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`United States v. Allen, 34 F.4th 789, 798 (9th Cir. 2022) (requiring “some form of
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`visual access” including “only a small number of public attendees”).
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`Here, at least some of the public was present. After jury selection, when more
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`space in the courtroom was available, the government requested that the victim’s
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`mother and her coworker be permitted to attend the trial. The court granted that
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`request and Holder did not object nor did he request his own guests. R., Vol. II
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`at 886 n.8.
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 12
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`Our circuit precedent is clear that total closures occur only when the court is
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`closed to “all persons besides witnesses, court personnel, the parties, and the
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`lawyers.” Veneno, 107 F.4th at 1112 (emphasis added). Because the victim’s mother
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`and her coworker were present, the courtroom was not totally closed for the relevant
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`portion of the trial.1
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`Second, COVID is a substantial reason that justifies the partial closure. See id.
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`at 1113 n.2; see also Diocese of Brooklyn, 592 U.S. at 18 (“Stemming the spread of
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`COVID–19 is unquestionably a compelling interest”). The district court followed the
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`Chief Judge of the District of Colorado’s protocols for holding a COVID trial and
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`these protocols were careful enough to protect Holder’s public trial rights, as well as
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`the health of the public.
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`Holder’s primary argument is that whether the closure is total or partial, the
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`lack of visual access to the public is unreasonable. He leans on United States v. Allen
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`in which the Ninth Circuit held that a district court order allowing no spectators and
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`no video stream was “truly exceptional.” 34 F.4th at 798. The Ninth Circuit ruled
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`that because other courts had allowed limited spectators or a video feed, the court had
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`less restrictive means than a total closure of the courtroom. Holder argues that we
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`should follow the Ninth Circuit’s lead.
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`But Allen itself approves of the access protocols in Holder’s trial. When the
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`Allen court lists other district courts who allowed at least some visual access, it cites
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`1 We need not and do not decide whether audio-only access results in a total or
`partial closure.
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 13
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`the district court order in this case. See Allen, 34 F.4th at 798 n.5, 799 (twice citing
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`the district court’s order denying a new trial). Rather than make Holder’s case, Allen
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`bolsters our conclusion that this is a partial closure and that an audio line with limited
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`spectators satisfies the Sixth Amendment.
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`Holder’s final argument is that even if audio-only access is constitutional, it is
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`insufficient here because the court did not advertise the dial-in number. But nothing
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`requires a court to advertise the date, time, and location of a trial. The district court
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`provided the dial-in number to the parties to disseminate, and counsel confirmed at
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`oral argument that the number was available if the public called the clerk’s office.2
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`The relevant question is who was excluded from the trial. See Nieto, 879 F.2d at 753
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`(finding that excluding the defendant’s family during certain testimony amounted to a
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`partial closure). Here, the public was not excluded from audio access.
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`The restrictions here, when paired with a public dial-in number, are justified
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`by the substantial interest in protecting the health of the trial’s participants. Holder’s
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`public trial right was not violated.
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`B.
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`Impartial Jury
`
`The Sixth Amendment also guarantees Holder a trial by an impartial jury.
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`U.S. CONST. amend. VI. A court violates the defendant’s Sixth Amendment rights if
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`it does not “draw its jury members from a fair cross section of the community.”
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`2 The protocols were available to the public: “An audio link will be provided
`[for all trials] to allow members of the public to call in and listen to the proceedings.”
`R., Vol. II at 312.
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 14
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`United States v. Shinault, 147 F.3d 1266, 1270 (10th Cir. 1998). Holder challenges
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`the district court’s exclusion of inactive voters from the jury wheel, claiming that this
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`systematically excludes black and Hispanic voters.
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`We review the district court’s findings of fact for clear error and the ultimate
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`legal determination de novo. Id. at 1271. Holder challenges the jury wheel both
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`under the Sixth Amendment and the Jury Selection and Service Act of 1968 (JSSA),
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`which prescribes procedures for jury selection and ensures no juror is excluded for
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`invidious reasons. See 28 U.S.C. § 1861 et seq.
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`We review Holder’s claims under the standards set forth by the Supreme Court
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`in Duren v. Missouri. 439 U.S. 357, 364 (1979). The standard for assessing fair-
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`cross-section-claims is the same under the Sixth Amendment and the JSSA. See
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`United States v. Test, 550 F.2d 577, 585 (10th Cir. 1976). To establish a prima facie
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`case, Holder must show
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`(1) that the group alleged to be excluded is a “distinctive”
`group in the community; (2) that the representation of this
`group in venires from which juries are selected is not fair
`and reasonable in relation to the number of such persons in
`the community; and (3) that this underrepresentation is due
`to systematic exclusion of the group in the jury-selection
`process.
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`Duren, 439 U.S. at 364. Holder cannot show unreasonable underrepresentation or
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`systematic exclusion.
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`The parties agree that black and Hispanic jurors are distinctive groups in the
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`community, so we begin at Duren prong two. To determine whether a group is
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`underrepresented, we use two comparative methods: absolute disparity and
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 15
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`comparative disparity. Shinault, 147 F.3d at 1272. Holder argues that both methods
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`show unreasonable underrepresentation.
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`Absolute disparity measures the difference between the group’s percentage of
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`the population and the group’s representation in the qualified wheel. Id.; see also
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`Opening Br. at 71–72 (“For example, if Black people compose 10% of the entire
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`population but only 2% of the qualified wheel, the absolute disparity is 8%.”). There
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`is no set threshold to determine a non-representative jury list, but “[c]ourts generally
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`are reluctant to find that the second element of a prima facie Sixth Amendment case
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`has been satisfied when the absolute disparities are less than 10%.” Shinault, 147
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`F.3d at 1273. Most recently, we held that an absolute disparity of 3.57% fell short of
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`a prima facia violation. United States v. Orange, 447 F.3d 792, 798 (10th Cir. 2006).
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`With this in mind, the absolute disparities in this case are reasonable. The
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`defense expert in this case found the absolute disparities were 1.41% for black voters
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`and 2.63% for Hispanic voters. Opening Br. App. C at ¶¶ 54–55. The government’s
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`expert numbers were lower: a 0.22% difference for black voters and 0.81% for
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`Hispanic voters. R. Vol. III at 883. No matter which numbers this court uses, both
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`are well below any percentages the Supreme Court or this court have found to violate
`
`the Sixth Amendment. Compare Duren, 439 U.S. at 365–66 (rejecting 39% absolute
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`disparity) with United States v. Yazzie, 660 F.2d 422, 427 (10th Cir. 1981) (allowing
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`4%) and United States v. Gault, 141 F.3d 1399, 1402–03 (10th Cir. 1998) (allowing
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`7%).
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`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 16
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`The comparative disparities in this case are no more alarming. Comparative
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`disparity is determined by taking the absolute disparity of a group and dividing it by
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`the percentage of the population that group occupies. See Gault, 141 F.3d at 1402.
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`Comparative disparity measures the percentage of that group “missing” from the jury
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`venire. It is a helpful measure for groups who make up a low percentage of the
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`population and thereby cannot have a high absolute disparity. The defense expert
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`found that comparative disparity for black voters was 34.42% and was 16.82% for
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`Hispanic voters. These numbers too are well below the comparative disparities this
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`court has approved. See, e.g., Shinault, 147 F.3d at 1273 (allowing comparative
`
`disparities of 59.84%, 50.09%, and 48.63%), and United States v. Chanthadara,
`
`230 F.3d 1237, 1257 (10th Cir. 2000) (same with 58.39% and 40.89%).
`
`We have long recognized that “only ‘gross’ or ‘marked’ disparities or
`
`‘substantial’ departures from a ‘fair cross section’ of the community require judicial
`
`intervention.” Test, 550 F.2d at 590. It is clear from our precedent that any
`
`underrepresentation in this case is nowhere near “gross,” “marked,” or “substantial.”
`
`Holder has not shown unreasonable underrepresentation.
`
`And so, his claim fails there. But even if we went further, Holder cannot show
`
`systematic exclusion. His only argument is that the numbers are self-evidently not
`
`the result of random factors, chance, or luck. He supports this theory with his
`
`expert’s assertion that the percentage of persons on the qualified jury wheel differs
`
`from the general population by seven standard deviations. But this does not show
`
`
`
`16
`
`

`

`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 17
`
`systematic exclusion, especially when the disparity numbers do not show an extreme
`
`departure.
`
`Holder has failed to make a prima facia showing that his jury was not made up
`
`of a representative cross section of his community. He cannot show unreasonable
`
`underrepresentation of black or Hispanic voters and cannot show that any
`
`underrepresentation is due to systematic exclusion.
`
`C.
`
`Constructive Amendment of the Indictment
`
`Next, Holder argues that the district court constructively amended the first and
`
`third counts of his indictment in violation of his Fifth Amendment rights. He points
`
`to three instances he believes amended the indictment. First, he claims the jury
`
`instructions allowed the jury to convict him for a different conspiracy, not just the
`
`six-person conspiracy described in the indictment. Second, he claims the jury was
`
`instructed it could find the pills were either fentanyl or counterfeit, but the
`
`indictment alleged both. Finally, he claims the jury found him guilty of distribution
`
`of fentanyl resulting in bodily harm despite making the special finding that no bodily
`
`harm occurred.
`
`At trial, Holder did not object on any of these grounds, so we review for plain
`
`error. He must demonstrate (1) an error, (2) that is plain, (3) that affects his
`
`substantial rights, and (4) seriously affects the fairness, integrity, or public reputation
`
`of judicial proceedings. United States v. Miller, 891 F.3d 1220, 1231 (10th Cir.
`
`2018). Holder cannot show that the district court plainly erred and allowed
`
`constructive amendment of the indictment.
`17
`
`
`
`

`

`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 18
`
`The Fifth Amendment to the Constitution provides that “[n]o person shall be
`
`held to answer for a capital, or otherwise infamous crime, unless on a presentment or
`
`indictment of a Grand Jury.” U.S. CONST. amend. V. To protect this right, courts
`
`must ensure that a defendant “only be tried on charges for which a grand jury has
`
`indicted him.” United States v. Apodaca, 843 F.2d 421, 428 (10th Cir. 1988).
`
`“[C]onstructive amendment occurs when the indictment alleges a violation of the law
`
`based on a specific set of facts, but the evidence and instructions [at trial] then
`
`suggest that the jury may find the defendant guilty based on a different, even if
`
`related, set of facts.” Miller, 891 F.3d at 1234.
`
`Count One. Holder first argues that Count One of the indictment was
`
`constructively amended. Count One reads:
`
`Count One: BRUCE HOLDER, LEXUS HOLDER, CORINA
`HOLDER, GERI BOCHMANN, JESSICA BRADY, and
`MARIE MATOS, did knowingly and intentionally conspire
`with each other and with persons known and unknown to the
`Grand Jury to distribute and possess with intent to distribute
`400 grams and more of a mixture or substance containing a
`detectable amount of fentanyl, . . . and such substance, without
`authorization, bore an identifying mark that falsely purported
`the substance to be the product of Mallinckrodt, Inc..
`
`R., Vol. VIII at 340. Holder’s theory is that the count alleges a single conspiracy of at
`
`least the six people named. But, he claims, the jury instructions and prosecutor’s
`
`arguments invited the jury to convict him for any conspiracy it could find.
`
`We have held that, when considering constructive amendment claims, “the jury
`
`instructions are of particular importance because they provide assurance that the jury
`
`found the conduct charged in the indictment before it could convict.” United States v.
`18
`
`
`
`

`

`Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 19
`
`Porter, 928 F.3d 947, 960 (10th Cir. 2019) (internal quotations and alterations removed).
`
`Indeed, Holder starts with the jury instructions. He claims that Instruction 19 broadened
`
`the indictment because it stated that the jury must find beyond a reasonable doubt that
`
`“two or more persons agreed to violate the federal drug laws.” R., Vol. II at 692
`
`(emphasis added).3
`
`
`3 Instruction 19 reads:
`
`
`BRUCE HOLDER, LEXUS HOLDER, CORINA
`HOLDER, GERI BOCHMANN, JESSICA BRADY, and
`MARIE MATOS, did knowingly and intentionally conspire
`with each other and with persons known and unknown to the
`Grand Jury to distribute or possess with intent to distribute
`400 grams or more of a mixture or substance containing a
`detectable amount of fentanyl, a Schedule II controlled
`substance, in violation of Title 21, United States Code,
`Sections 841 (a)(1) and (b)(1)(A)(vi), and such substance,
`without authorization, bore an identifying mark that falsely
`purported the substance to be the product of Mallinckrodt,
`Inc., a manufacturer of controlled substances, which did not,
`in fact, manufacture such substance[.]
`* * *
`To find Mr. Holder guilty of this crime you must be
`convinced that the Government has proved each of the
`following beyond a reasonable doubt:
`
`First: two or more persons agreed to violate the federal
`drug laws by:
`(1) distributing or possessing with intent to distribute
`fentanyl, or
`(2) distributing or possessing with intent to distribute
`a counterfeit substance;
`
`
`R., Vol. II at 692 (emphasis added).
`
`
`
`
`19
`
`

`

`Appellate Case: 23-1021 Document: 117

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