D.C. No. 1:11-CR-00406-CMA-2, 1:11-CR-00406-CMA-3, 1:11-CR-00406-CMA-1) (D. Colo.)
Before LUCERO, MURPHY, and PHILLIPS, Circuit Judges.
ORDER AND JUDGMENT [*]
Gregory A. Phillips, Circuit Judge.
Appellants Daniel Shaw, Dustin Pfeiffer, and Manuel Santistevan were all charged in the same single-count indictment with aggravated sexual abuse of a fellow federal inmate in violation of 18 U.S.C. § 2241(a)(1). The three were tried together and, after a five-day trial, a jury found them guilty. They now bring separate appeals, which we combined for purposes of oral argument.
Shaw, Pfeiffer, and Santistevan primarily contend that the district court improperly admitted evidence of acts not charged in the indictment. We do not believe the district court abused its discretion in this regard—nor do we find any other basis for reversal. Exercising jurisdiction under 28 U.S.C. §1291, we affirm as to all Appellants.
At all times relevant to this appeal, Shaw, Pfeiffer, and Santistevan were incarcerated at FCI Englewood—a federal correctional institution and detention center in Littleton, Colorado.
In January 2011, a new inmate named Trent Hix arrived at Englewood. The day after his arrival, Shaw, Santistevan, and another inmate entered Hix's cell. The men discussed an "offer of protection" with Hix, which he declined. R. vol. 2, at 204.Santistevan then told Hix he was going to get the protection anyway, and that Hix would have to pay for it by "sucking his dick." Id. at 205. Hix again refused, and the three men eventually left.
Two days later, Pfeiffer and another inmate asked Hix to come over so that they could talk to him. At the time, the men were standing outside the cell assigned to Pfeiffer and another relatively new inmate named Ryan Greeves. Like Hix, Greeves had also refused protection, and, later, Shaw had assaulted him on various occasions— accompanied by either Pfeiffer or Santistevan. In fact, Shaw and Pfeiffer had just finished assaulting Greeves when Hix came over and entered the cell.
Shaw and Pfeiffer then began punching and kneeing Hix in the legs and stomach while at least one other inmate held him. Soon after, Santistevan entered the cell and moved Hix towards Pfeiffer's bunk. Greeves left around this time.
According to Hix, another inmate stood guard by the door. Santistevan pulled down Hix's pants and said, "I am going to rape you." R. vol. 2, at 227. Hix could not break free because Pfeiffer and Shaw held him on either side. Hix then felt something being rubbed on his genitals and his backside and something being inserted into his anus. The object was continually thrust into him for approximately one minute.
Afterwards, Hix saw Santistevan wiping his fingers. Santistevan warned Hix that if he gave him instructions to do something in the future he was to comply. Pfeiffer and Shaw told Hix not to take the incident too seriously.
Hix reported the sexual assault the next day. A doctor examined Hix and saw what looked like toothpaste around his anal opening.
In a single-count indictment, a grand jury charged Shaw, Pfeiffer, and Santistevan with aggravated sexual abuse of Hix in violation of 18 U.S.C. § 2241(a) and § 2 (aiding and abetting). Pfeiffer and Santistevan moved for separate trials, but the district court denied the motions and all three men were tried together.
At trial, Hix testified about these events. He also testified about his earlier interaction with Santistevan and Shaw and the offer of protection. Greeves, in turn, testified about being assaulted, sexually and otherwise, a total of four times, including the assault immediately preceding the sexual assault of Hix. Before trial, the district court determined that all of this other-act evidence was admissible under Federal Rule of Evidence 404(b), and that certain acts were also admissible as intrinsic evidence and under Federal Rule of Evidence 413. After a James hearing, the district court also ruled that the statements made by Shaw, Pfeiffer, and Santistevan during the commission of these other acts were admissible as coconspirator statements under Federal Rule of Evidence 801(d)(2)(e).
Shaw, Pfeiffer, and Santistevan challenge their convictions on various grounds. All three argue that the district court abused its discretion in admitting evidence of other acts involving Hix and Greeves. In addition, both Pfeiffer and Santistevan argue that the district court abused its discretion in denying their motions for separate trials. Pfeiffer alone argues that the prosecution failed to disclose exculpatory evidence in violation of Brady v. Maryland. And finally, Santistevan alone argues that cumulative error and insufficiency of the evidence both require reversal. We address each of these arguments in turn.
A. Admission of other-act evidence
We review a district court's decision to admit evidence for an abuse of discretion and reverse only if the court's decision was "manifestly erroneous." United States v. Irving, 665 F.3d 1184, 1210 (10th Cir. 2011). Even if the district court abused its discretion, this court will "not disturb a jury verdict based on a Rule 404(b) error if it was ...