United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 23-1096

___________________________ 

United States of America

 Petitioner - Appellee

v.

Darius Sledge, also known as Ace, also known as Man Man, also known as Frank, 

also known as Frank Love, also known as Gary, also known as Bill

 Defendant - Appellant

___________________________

No. 23-1099

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Baquan Sledge, also known as Sledge, also known as Rell, also known as TJ, also 

known as Matthew Pierce

 Defendant - Appellant

____________

Appeal from United States District Court 

for the District of North Dakota - Eastern

____________ 
-2- 

Submitted: March 12, 2024

Filed: July 16, 2024

____________ 

Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges. 

____________

SHEPHERD, Circuit Judge.

Darius Sledge and Baquan Sledge were indicted on five counts stemming 

from their participation in, and leadership of, a drug distribution conspiracy in North 

Dakota. Following a jury trial, Baquan was found guilty on all counts, and Darius 

on all but one. Both now appeal, asserting various points of error. Having 

jurisdiction under 28 U.S.C. § 1291, we reverse Darius’s continuing criminal 

enterprise conviction and remand for a new trial, remand to the district court on 

Baquan’s drug conspiracy conviction, but affirm the judgments in all other respects.

I. 

This case arises out of a wide-ranging conspiracy to distribute oxycodone pills

in North Dakota. Beginning in 2015, Baquan led Darius and others in establishing

a pill distribution network targeting the Turtle Mountain, Fort Berthold, and Spirit 

Lake Indian Reservations. Transporting thousands of pills at a time from Michigan, 

the group recruited local residents in North Dakota as sub-distributors, stayed at their 

homes, and compensated them by paying rent or phone bills. The scale of the 

operation was substantial. Baquan and Darius would make between 15 and 20 trips 

each year. Baquan was known to carry a gallon-sized plastic bag containing up to 

10,000 pills at a time, with each pill selling for between $40 and $80. Proceeds were 

physically transported back to Michigan or sent to family members via electronic 

money transfers. Despite being arrested in October 2019, Baquan continued his 

involvement in the operation by calling Darius from jail. Darius was arrested the 

next year. 
-3- 

A grand jury charged Darius and Baquan with five counts: (1) conspiracy to 

distribute and possess with intent to distribute a controlled substance, in violation of 

21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; (2) money laundering 

conspiracy, in violation of 18 U.S.C. § 1956(h) and (a)(1); (3) possession with intent 

to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 

U.S.C. § 2; (4) maintaining a drug-involved premises, in violation of 21 U.S.C. § 

856 and 18 U.S.C. § 2; and (5) continuing criminal enterprise (CCE), in violation of 

21 U.S.C. § 848(a) and (c). 

In the year preceding Darius and Baquan’s joint trial, the United States 

Marshals Service relocated Baquan from a North Dakota correctional facility to a 

facility in Colorado. Alleging that the new thousand-mile distance from his attorney 

prejudiced his defense, in violation of his Sixth Amendment right to counsel, Baquan 

moved the district court to order his return to North Dakota. Two months later, the 

district court held a hearing on the motion. Baquan acknowledged that, since filing 

his motion, he had been returned to a facility within North Dakota. Because the 

Marshals Service communicated to the district court its intent to keep Baquan in 

North Dakota until his case was resolved, the district court denied the motion as 

moot. 

The joint trial began six months later. Dozens of witnesses testified, and 

hundreds of exhibits were entered into evidence. We therefore recount the facts of 

the trial only to the extent necessary to dispose of the issues raised on appeal. During 

trial, the district court admitted into evidence text messages, photographs, and videos 

from the phone of unindicted coconspirator Kevon Savage. The photographs and 

videos showed, among other things, Savage and Darius with large amounts of money 

and pills. During trial, counsel for Baquan complained that the Government was 

listening to his client’s jail phone calls. He conceded, “Certainly the government 

has a right to do that,” but protested that it was “dirty.” The jury ultimately returned 

a guilty verdict on all counts, except for the distribution of oxycodone count as to 

Darius.
-4- 

Three months after the verdict, an alternate juror contacted Baquan’s counsel

to provide text messages between herself and a second juror, wherein they discussed 

that a third juror, L.O., had once mentioned that his daughter had “ODed” on “pills.” 

Darius and Baquan jointly moved for a new trial and evidentiary hearing based on 

claims of juror bias or misconduct, asserting that L.O. “purposefully refused to 

volunteer critical . . . information” during voir dire and “ke[pt] . . . secret” his 

daughter’s alleged overdose. The district court denied the motions. 

The district court ultimately sentenced Darius to 360 months’ imprisonment 

on the CCE count and 240 months’ on his remaining three, all running concurrently. 

The district court also sentenced Baquan to 360 months’ imprisonment on the CCE 

count and 240 months on his remaining four, all running concurrently. 

II. 

We begin with Darius’s challenge to his CCE conviction based on an alleged 

error in the jury instructions. To establish a CCE violation, the Government must 

prove that the defendant committed: 

1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of three or more related felony 

violations of federal narcotics laws;

3) in concert with five or more other persons;

4) for whom [the defendant] is an organizer, manager or supervisor; 

[and]

5) from which [the defendant] derives substantial income or resources.

United States v. Lee, 687 F.3d 935, 940 (8th Cir. 2012) (second alteration in original) 

(citation omitted). Relying on the Supreme Court’s decision in Richardson v. United 

States, 526 U.S. 813 (1999), Darius asserts that the district court was required to 
-5- 

instruct the jury that it must unanimously agree as to which three predicate felonies 

constituted the “continuing series.” Because the jury did not receive this specific 

unanimity instruction, and because the jury found him guilty of only two predicate 

felonies, Darius asserts that we cannot know if the jury unanimously agreed which 

three he committed, as Richardson requires.1

A.

As a threshold matter, we must first address the appropriate standard of 

review. “We typically review a challenge to jury instructions for an abuse of 

discretion. Where a party fails to timely object to an instruction at trial, however, 

we review only for plain error.” United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 

2011) (citation omitted). 

Darius asserts that he “properly objected” to the jury instructions on this issue 

at trial. We disagree. “An objection must be timely and clearly state the grounds.” 

United States v. Burrage, 951 F.3d 913, 916 (8th Cir. 2020). Here, when discussing 

the proposed final instructions with the district court and the Government, counsel 

for Darius did not object to the lack of a specific unanimity instruction. Rather, 

counsel stated that “the felony violations of federal controlled substance laws should 

be explained to the jury and set forth; in other words, that . . . these two felony 

1

Darius does not clearly frame his argument in these terms. He variously

states that his “challenge here [on appeal] is not based upon a result reached by the 

jury”; that “the faulty instruction divested [him] of a defense”; that “the incorrect 

jury instruction violated his constitutional right to a full and fair trial”; that the 

instructional flaw violated his Sixth and Seventh Amendment rights to a unanimous 

verdict; and that the instructional flaw violated his Sixth and Fourteenth Amendment

rights to notice of the charges against him. Although courts “should not[] sally forth 

each day looking for wrongs to right,” Greenlaw v. United States, 554 U.S. 237, 

244 (2008) (citation omitted), because Darius’s reply brief mostly refocuses on his 

claim that there was an “obvious error in the” CCE instructions, we construe his 

otherwise sprawling argument as raising an alleged error in the jury instructions 

based on Richardson. 
-6- 

violations have occurred beyond a reasonable doubt within that continuing criminal 

enterprise.” Counsel later clarified, “for purposes of the record,” that the CCE 

“instruction[s] should make it clear . . . what . . . federal controlled substance law[s] 

were violated.” Thus, even after clarifying his point, counsel failed to clearly state 

that a unanimity instruction was required.

While it is true that Darius filed “Proposed Jury Instructions and/or Objections 

to the Court’s Preliminary Proposed Jury Instructions” one month before these final 

jury instruction discussions, Darius therein stated that he had no objections to the 

proposed instructions “except those which conflict with other instructions set forth 

below.” The “instructions set forth below” appear to be a near verbatim recitation

of Eighth Circuit model CCE jury instructions, which contain a specific unanimity 

instruction. But even if we charitably assume that this constituted the tender of a 

specific unanimity instruction, “[t]he mere tender of an alternative instruction 

without objecting to some specific error . . . or explaining why the proffered 

instruction better states the law does not preserve the error for appeal.” United States 

v. Weckman, 982 F.3d 1167, 1175 (8th Cir. 2020) (citation omitted). Here, Darius 

did neither. Therefore, because Darius did not clearly state that a specific unanimity 

instruction was required when discussing the final proposed instructions, we review 

for plain error. See Burrage, 951 F.3d at 916.

In so holding, we reject the Government’s alternative argument that Darius 

waived his objection by inviting the alleged error. “When a party expressly agrees 

to an instruction, the doctrine of invited error applies, and any objection to the 

instruction is waived.” United States v. Davis, 826 F.3d 1078, 1082 (8th Cir. 2016). 

But the Government points us to no portion of the record in which Darius expressly 

agreed to the lack of a specific unanimity instruction. Nor does the Government 

offer any supporting legal authority for its claim that Darius invited the error by 

rejecting its proposed special verdict form which listed predicate felonies.

Likewise, we reject Darius’s alternative argument that de novo review applies. 

“[A]lthough district courts exercise wide discretion in formulating jury instructions, 
-7- 

when the refusal of a proffered instruction simultaneously denies a legal defense, the 

correct standard of review is de novo.” United States v. Bruguier, 735 F.3d 754, 757

(8th Cir. 2013) (en banc) (alteration in original) (citation omitted). Darius asserts 

“that the faulty instruction divested [him] of a defense, namely arguing to the jury 

which of the three felonies had not been proven . . . .” But Darius did not proffer a 

specific unanimity instruction when discussing the final proposed instructions, and 

the district court expressly told counsel that “in their closing arguments” they could 

“argue about what constitutes the three or more related felony convictions of a 

federal controlled substance law and why that burden hasn’t been met by the 

government.” 

B.

 “To obtain relief under a plain-error standard of review, the party seeking 

relief must show that there was an error, the error is clear or obvious under current 

law, the error affected the party’s substantial rights, and the error seriously affects 

the fairness, integrity, or public reputation of judicial proceedings.” Poitra, 648 F.3d 

at 887. 

1. 

Here, we conclude that the district court’s failure to issue a specific unanimity 

instruction was an error that is clear or obvious under current law. In Richardson, 

the Supreme Court held that “a jury has to agree unanimously about which specific 

violations make up the ‘continuing series of violations’” required by the CCE statute. 

526 U.S. at 815. And in United States v. Jefferson, we all but confirmed that a trial 

court errs when it fails to issue a specific unanimity instruction. 215 F.3d 820, 823 

(8th Cir. 2000). There, when analyzing the defendants’ claim that there was an error 

in the CCE jury instructions, we held that: 

[W]ith one exception, the district court correctly instructed the jury. 

Although the district court failed to instruct the jury that it must 
-8- 

unanimously agree on which three or more acts constitute the “series of 

violations” requirement in the CCE [statute], the omission was 

harmless . . . because the jury convicted [the defendants] of more than 

three predicate federal narcotics offenses. 

Id. (quoting Richardson, 526 U.S. at 824). While not explicit, this holding

necessarily implies that the district court erred when it failed to give a specific 

unanimity instruction, which, in turn, necessarily implies that one was required. 

The Government’s counterargument that another instruction described some

felonies that could make up the series is unavailing, for it says nothing about

unanimity. So too with the Government’s argument that the instructions were 

consistent with the Model Jury Instructions for the Eighth Circuit. The Model 

Instructions are “not binding on the district courts,” and so consistency with them is 

not dispositive. United States v. Owens, 966 F.3d 700, 705 (8th Cir. 2020) (citation 

omitted). Moreover, the Model Instructions include a specific unanimity instruction.

See Eighth Circuit Manual of Model Jury Instructions (Criminal) 6.21.848A (2023). 

In short, we conclude that, under current law, the district court’s failure to issue a 

specific unanimity instruction was an error that is clear or obvious.

2. 

Presumably because he does not believe that plain error applies, see supra

Section II.A., Darius does not expressly argue whether this instructional error 

“affected [his] substantial rights, [or whether] the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” Poitra, 648 F.3d at 887. “In 

order to affect substantial rights, the error must have been prejudicial.” United States 

v. Rush-Richardson, 574 F.3d 906, 911 (8th Cir. 2009) (citation omitted) (analyzing 

a plainly erroneous jury instruction). “The defendant’s burden is to ‘satisfy the 

judgment of the reviewing court, informed by the entire record, that the probability 

of a different result is sufficient to undermine confidence in the outcome of the 

proceeding.’” Id. (citations omitted).
-9- 

Here, the probability of a different result is sufficient to undermine our 

confidence in the outcome of the proceedings. As Darius repeatedly emphasizes, 

the jury found him not guilty of possession with intent to distribute oxycodone. As 

for the remaining charges, the jury found Darius guilty of conspiracy to distribute or 

possess with intent to distribute a controlled substance, maintaining a drug-involved 

premises, and money laundering conspiracy. The Government does not suggest that 

the money laundering conspiracy is a predicate “felony violation[] of federal 

narcotics laws.” Lee, 687 F.3d at 940; United States v. Brown, 202 F.3d 691, 700

(4th Cir. 2000) (holding that money laundering cannot be a predicate offense under 

the CCE statute). But that leaves only two predicate felonies that we know the jury 

unanimously agreed upon, not three: the drug conspiracy count and the maintaining 

a drug-involved premises count. In essence, the fact that Darius was charged with 

three predicate felonies but found guilty of only two is powerful evidence that, had 

the jury been properly instructed, it may have returned a not-guilty verdict on the 

CCE count.

The Government argues that this is inconsequential because the jury 

instructions explained that “felony violations of federal controlled substance laws 

may be any or all of the following offenses: possession of oxycodone with intent to 

distribute, distribution of oxycodone, and maintaining a drug premise[s],” and 

because the Government argued the specific unanimity requirement during closing 

arguments. It proposes that the jury could have found one of these three felonies as 

the requisite third predicate offense. We disagree. The jury found Darius not guilty 

of that first proposed extra felony: possession with intent to distribute oxycodone. 

As for the second, distribution of oxycodone, Darius was never charged with that 

crime, and so the jury rendered no relevant verdict from which we could glean their

unanimity. And, absent any contrary indications in the record, it is difficult to 

speculate that the jury unanimously agreed that Darius distributed oxycodone 

but—per the verdict—did not possess it with intent to distribute it. See Lanier v. 

United States, 220 F.3d 833, 840 (7th Cir. 2000) (analyzing the defendant’s 

challenge to his CCE conviction and concluding that “the jury could not have found 
-10- 

[him] guilty of distribution without also finding him guilty of possession with intent 

to distribute”). 

Turning to the third proposed extra felony, we are not persuaded by the 

Government’s speculation that the jury must have unanimously found Darius guilty 

of an additional uncharged count of maintaining a drug-involved premises. When 

arguing that any instructional error was harmless,2

 the Government states—without 

appropriate citations to the record3

—that six witnesses testified to housing Darius 

for the purpose of distributing pills. See 8th Cir. R. 28A(j) (“Citations to a document 

from a district court docket should include reference to the record, the document 

number, and page number of the document in the following form: R. Doc. 12, at 3.”). 

But jurors may disagree about the “underlying brute facts” that constitute the offense

conduct and still reach unanimity that a particular offense occurred. United States 

v. Johnson, 495 F.3d 951, 974-75 (8th Cir. 2007) (citation omitted). We would 

2

Although we need not analyze a plain error for harmless error, see Greer v. 

United States, 593 U.S. 503, 512 (2021) (differentiating the standards for plain- and 

harmless-error review and concluding “that unpreserved errors must be analyzed for 

plain error”), the inquiry between the two is “substantially similar,” Ramirez-Burgos 

v. United States, 313 F.3d 23, 29 (1st Cir. 2002). Under both plain error and 

harmless error, “the ultimate inquiry requires a determination as to whether the error 

affected substantial rights, which in most cases means whether the error was 

prejudicial or affected the outcome of the district court proceedings.” United States 

v. Patterson, 68 F.4th 402, 421 n.4 (8th Cir. 2023) (citation omitted); see United 

States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (“The defendant has the 

burden of proving plain error, whereas the government has the burden of proving 

harmless error.”). We therefore construe the Government’s argument that the 

instructional error was harmless as an argument that it did not affect Darius’s 

substantial rights.

3

Elsewhere, the Government cites “See TT generally” for the proposition that 

it introduced substantial evidence at trial of Baquan’s individual acts of 

drug distribution. We note that the trial transcript is 2,523 pages long, and we 

decline to search it for testimony favorable to the Government. United States v. 

Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (“Judges are not like pigs, hunting for 

truffles buried in [the record].” (citation omitted)).
-11- 

therefore be engaging in pure speculation to say that the jurors must have 

unanimously agreed that Darius maintained a second drug-involved premises simply 

because the Government put on some evidence that he maintained more than one. 

Nor are the Government’s remaining harmless error arguments persuasive. 

The Government goes on to state—this time without any citation to the record—that 

“[t]here was also substantial testimony on distribution of oxycodone by Darius.” 

The Government then claims that “[t]he jury observed still images of video 

surveillance of Darius with Kevon Savage [at a location] where Kevon Savage was 

later found in possession of a deliverable amount of pills.” Finally, the Government 

states that “[t]he jury also saw text messages and photographs corroborating Darius’ 

acts of distribution,” although it does not explain what those text messages say, what 

the photographs show, what the specific “acts of distribution” were, or how that 

evidence corroborates the claim that Darius engaged in those acts. These 

perfunctory, undeveloped assertions—lacking proper citations to the record—do not 

persuade us that Darius failed to identify an error affecting his substantial rights. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“Judges are not expected 

to be mindreaders.” (citation omitted)).

3.

Finally, we conclude that the instructional error in this case “seriously affects 

the fairness, integrity, or public reputation of judicial proceedings.” Poitra, 648 F.3d 

at 887. Darius was sentenced to 360 months’ imprisonment on the CCE count, but 

only to 240 months’ imprisonment on the remaining three, all to run concurrently. 

Therefore, because Darius received an additional 120 months’ imprisonment on a 

count for which he may not have been found guilty were the jury properly instructed, 

we hold that the fairness, integrity, and public reputation of the proceedings were 

seriously affected. See United States v. Lara-Ruiz, 721 F.3d 554, 559 (8th Cir. 2013)

(holding that “the fairness and integrity of the judicial proceedings . . . were affected 

by the expansion of [the defendant’s] loss of liberty resulting from [an] erroneous 

increase in the mandatory minimum sentence, without the requisite jury finding”); 
-12- 

cf. Pirani, 406 F.3d at 553-54 (explaining that our Circuit’s prior “decisions reflect 

proper concern that the fairness, integrity, and public reputation of judicial 

proceedings are seriously affected when a defendant must spend additional time in 

prison on account of an illegal sentence”). 

We therefore conclude that Darius has identified a plain error in the district 

court’s CCE jury instructions. Accordingly, we reverse Darius’s CCE conviction

and remand for a new trial. Because we reverse Darius’s CCE conviction, we 

decline to consider his alternative arguments that the jury instructions were deficient 

in failing to name the five other persons he was alleged to have supervised, and that 

there was insufficient evidence presented at trial to prove he derived “substantial 

income” from the enterprise.

4

 However, the Government recognizes that “a drug 

conspiracy violation of 21 U.S.C. § 846 is a lesser included offense of a CCE 

violation of 21 U.S.C. § 848.” Johnson, 495 F.3d at 980. While we need not address 

this concession as to Darius—given that we reverse his CCE conviction—it must 

still be addressed as to Baquan. We remand to the district court on Baquan’s drug 

conspiracy count so that it may vacate the lesser-included conviction. See id. at 981 

(doing the same).

III.

Darius and Baquan both challenge the admission into evidence at trial various 

text messages, videos, and photographs obtained from the cellphone of unindicted 

4

Baquan also argues that there was insufficient evidence to establish the 

second, third, fourth and fifth elements of his CCE conviction. He does so without 

citation to legal authority, however, and with only two citations to the 

record—citations which direct us to his motion for judgment of acquittal and the 

district court’s order dismissing it. The argument section of that motion also

contains no citations to legal authority. Accordingly, we consider Baquan’s 

challenge to the sufficiency of the evidence waived. See United States v. Kalb, 750 

F.3d 1001, 1005 (8th Cir. 2014) (holding that a claim on appeal was waived because 

it was not supported “with specific reasons, citations to the record, or relevant legal 

authority” (citation omitted)).
-13- 

coconspirator Kevon Savage. The district court admitted the challenged evidence 

under Federal Rule of Evidence 801(d)(2)(E), which provides that statements made 

by a defendant’s coconspirator during and in furtherance of the conspiracy are not 

hearsay. Darius and Baquan’s arguments challenging the admission of this evidence

have no merit.

Darius argues that the admission of the evidence violated his Confrontation

Clause rights. But “co-conspirators’ statements made in furtherance of a conspiracy 

and admitted under Rule 801(d)(2)(E) are generally non-testimonial and, therefore, 

do not violate the Confrontation Clause.” United States v. Mayfield, 909 F.3d 956, 

962 (8th Cir. 2018) (citation omitted). Significantly, Darius does not argue that any 

statements introduced into evidence from Savage’s phone were not made in 

furtherance of the conspiracy. Darius’s attempt to “factually distinguish[]” Mayfield

is also meritless. We also reject as meritless Baquan’s argument that the district 

court “improperly ignored the dictates of Crawford [v. Washington, 541 U.S. 36

(2004)]” by applying Mayfield. Mayfield is a binding decision in our Circuit, and it

repeatedly discussed Crawford. 909 F.3d at 962; Mader v. United States, 654 F.3d 

794, 800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one panel 

is bound by the decision of a prior panel.” (citation omitted)). Finally, we decline to 

consider Baquan’s conclusory statement that the district court erred in finding that 

Savage was in fact a coconspirator—another assertion presented without citations to 

the record or legal authority.

IV. 

Darius and Baquan next argue that the district court abused its discretion when 

denying their motion for a new trial and evidentiary hearing based on their claims of 

juror bias or misconduct. The “[h]onesty of the juror and actual bias are factual 

issues” reviewed for clear error, but “[t]he ultimate determination of whether a new 

trial is required is reviewed for abuse of discretion.” United States v. Ruiz, 446 F.3d 

762, 770 (8th Cir. 2006) (citations omitted). We conclude that the district court did 
-14- 

not abuse its discretion in denying Darius and Baquan a new trial or evidentiary 

hearing.

Pursuant to McDonough Power Equipment, Inc. v. Greenwood, 

464 U.S. 548, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984), a party seeking 

a new trial on the basis of concealed juror bias must prove three things: 

(1) that the juror answered dishonestly, not just inaccurately; (2) that 

the juror was motivated by partiality; and (3) that the true facts, if 

known, would have supported striking the juror for cause.

Ruiz, 446 F.3d at 770. Here, after carefully reviewing the voir dire transcript, the 

district court concluded that “[n]either the Court, the Government, nor defense 

counsel ever asked a specific question, a direct question, or an indirect question to 

[L.O.] about he or his immediate family members having any issues with opioids, 

addiction, or overdoses.” Accordingly, the district court concluded that L.O. never 

answered any material question dishonestly. Id.; see also McDonough Power, 464 

U.S. at 556 (“[T]o obtain a new trial . . . , a party must first demonstrate that a juror 

failed to answer honestly a material question on voir dire . . . .”).

The district court did not clearly err in reaching this conclusion, and it 

therefore did not abuse its discretion in denying the motion. At voir dire, the district 

court asked potential jurors whether they may be prejudiced or biased against the 

Government or Defendants “simply because of the type of charges that are brought 

in this case.” The district court explained that “[t]hese are drug charges” and asked 

if there was “anything . . . involving drug offenses that raises concerns in your mind 

about serving as a juror?” One juror—not L.O.—answered affirmatively, but no 

others did. The court asked each juror to individually “share just a little bit of 

information about [themselves],” and L.O. obliged. He mentioned his prior work, 

being retired, his children, and his hobbies. The Government later asked the 

potential jurors if “anyone had a family member, a close friend who struggled with 

addiction?” The Government indicated that it saw “a few responses” and that it 

“may” come back to some of them. The Government asked another juror—not 

L.O.—about her answer to that question but came back to no others. Defense 
-15- 

counsel questioned the potential jurors but asked no follow-up questions about 

family histories of drug addiction or related topics. Based on the foregoing, we 

cannot say the district court clearly erred in concluding that L.O. never dishonestly 

answered a material question.

The district court also denied Darius and Baquan’s request for an evidentiary 

hearing, concluding that inquiry into intra-jury communications between L.O. and 

other jurors would violate Federal Rule of Evidence 606(b), that no exception to 

Rule 606(b) applied, and that a hearing was unwarranted given that Darius and 

Baquan did not carry their burden under the McDonough Power framework. 

Because we agree that Darius and Baquan failed to carry their burden under the 

McDonough Power framework, we find no abuse of discretion in the district court’s 

denial of the motion for an evidentiary hearing. See United States v. Tucker, 137 

F.3d 1016, 1029 (8th Cir. 1998) (holding that the defendant’s “sufficient showing of 

a McDonough claim . . . entitle[d] him to a hearing”). We decline to consider 

Baquan’s remaining arguments pertaining to Rule 606(b).

V.

Baquan argues that the district court erred in denying as moot his motion for 

placement in North Dakota. In that motion, Baquan asserted that by being moved 

from a custodial facility in North Dakota to Colorado pending trial—many miles 

from his attorney—his Sixth Amendment right to counsel was violated. He asserts 

on appeal that the appropriate remedy for this alleged constitutional violation is 

vacatur of his conviction. We review a claim of a violation of the right to counsel 

de novo. United States v. Harris, 964 F.3d 718, 722 (8th Cir. 2020). Upon de novo 

review, we conclude that there was no violation of Baquan’s Sixth Amendment right 

to counsel. “A defendant establishes a Sixth Amendment violation if (1) ‘the 

government knowingly intruded into the attorney-client relationship,’ and (2) ‘the 

intrusion demonstrably prejudiced the defendant, or created a substantial threat of 

prejudice.’” United States v. Sawatzky, 994 F.3d 919, 923 (8th Cir. 2021) (citation 

omitted). In his motion below, Baquan did not argue any knowing intrusion by the 
-16- 

Government. Indeed, he conceded that “the U.S. Marshal[s] Service is the legal 

custodial entity which determines housing Defendants pre-trial” and that “legally in 

general he has no right to demand a specific housing location.” He also conceded 

that the Marshals Service’s motivation was probably its “own placement and budget 

concerns,” and that he was not accusing them of “acting maliciously.” These 

concessions obviate any argument on appeal that the Government “knowingly 

intruded” into his attorney-client relationship.

VI. 

Finally, Baquan argues that the Government engaged in prosecutorial 

misconduct by listening to his jailhouse calls throughout trial, which he asserts 

denied him a fair trial and warrants vacatur of his convictions. Baquan failed to 

properly preserve an objection to this conduct because he did not precisely state the 

grounds for his objection and conceded that the conduct was legally permitted. 

Framing his comments at trial as “more of a request than a motion,” counsel for 

Baquan stated, “Yeah, they have a right to do it. Knock themselves out, but I really 

think it’s dirty, and I would request that they cease doing so, if anything, just out of 

the consciousness of fair play.” We therefore review for plain error. See United 

States v. Davis, 534 F.3d 903, 914 (8th Cir. 2008). 

“Prosecutorial misconduct can result in the reversal of a conviction if (1) the 

prosecutor’s conduct or remarks were improper, and (2) the conduct or remarks 

prejudicially affected the defendant’s substantial rights by depriving the defendant 

of a fair trial.” Id. But when an inmate has impliedly consented to his calls being 

recorded by making the calls despite being informed that they are recorded, there is 

no prosecutorial misconduct. See United States v. Morin, 437 F.3d 777, 780 (8th 

Cir. 2006). On appeal, Baquan points to nothing in the record rebutting testimony

at trial that inmates were told their calls are recorded. We therefore find no plain 

error in the district court’s decision to take no action with respect to Baquan’s

“request” on this matter. 
-17- 

VII. 

For the foregoing reasons, we reverse Darius’s CCE conviction and remand 

for a new trial on this count, remand to the district court on Baquan’s drug conspiracy 

conviction, and affirm the judgments in all other respects.

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