UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

BRADLEY WAYNE MORRIS, 

 Defendant - Appellant.

No. 23-7042

(D.C. No. 6:21-CR-00034-JFH-1)

(E.D. Okla.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before TYMKOVICH, EBEL, and EID, Circuit Judges.

_________________________________

Bradley Wayne Morris was convicted at trial of sexually abusing his young 

daughter, B.M. He was sentenced to 420 months’ imprisonment and a lifetime of 

supervised release. Mr. Morris’s central claim on appeal is that prosecutorial 

misconduct during trial—improper vouching, asking the jury to act as the community 

conscience, and misstating the law—constitute plain error and warrant reversal of his 

conviction.

We affirm his conviction. Mr. Morris cannot show plain error by the district 

court. It was not plain or obvious that, without any objection, the court should have 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 16, 2024

Christopher M. Wolpert

Clerk of Court

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ordered a new trial. But we do, however, remand the case to the district court to 

correct the discrepancies between the oral and written conditions of Mr. Morris’s 

supervised release. 

I. Background

Mr. Morris’s three children, triplets, were born in January 2010. The mother 

had primary custody of the children until 2014—at which point Mr. Morris gained 

custody due to a pending criminal case against the mother. In March 2020, Mr. 

Morris’s daughter, B.M., attended a child-abuse prevention presentation at her 

school. After the presentation, ten-year-old B.M. approached the presenter and 

reported she was being abused at home, starting when she was seven or eight years 

old. The presenter reported the allegations of abuse to law enforcement and B.M. 

was examined by a forensic nurse. B.M. provided detailed testimony of her abuse, 

but the specific facts of such abuse are not relevant on appeal.

Mr. Morris was charged with two counts of aggravated sexual abuse in Indian 

Country pursuant to 18 U.S.C. § 2241(c), and two counts of abusive sexual contact in 

Indian Country pursuant to 18 U.S.C. § 2244(a)(5). 1

 At trial, the government 

presented testimony from various witnesses, including B.M. herself, who was by then 

a 12-year-old fifth grader. The government also presented testimony from B.M.’s 

12-year-old brother, who testified that he witnessed his father abuse his sister, and a 

1 Mr. Morris was initially charged by the State of Oklahoma, but the case was 

dismissed for lack of jurisdiction after the United States Supreme Court decision in 

McGirt v. Oklahoma, 591 U.S. 894 (2020). 

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police officer who found pornography on Mr. Morris’s phone that matched B.M.’s

description of pornography her father would make her watch. The jury convicted Mr. 

Morris on all four counts. 

At sentencing, the district court articulated the conditions of his supervised 

release. But the court’s written judgment included additional supervised release 

conditions not orally pronounced at sentencing. The government concedes the orally 

pronounced sentence controls. 

II. Discussion

Mr. Morris alleges that several instances of prosecutorial misconduct rendered 

his trial so unfair as to make his conviction a violation of due process. He argues the 

government improperly vouched for B.M., encouraged the jury to act as the 

community conscience, and misstated the law. He also argues the cumulative effect 

of these errors deprived him of a fair trial.

 Mr. Morris contends the district court plainly erred in not sua sponte

addressing the alleged misconduct. Because he failed to raise this objection we 

review for plain error. See United States v. Young, 470 U.S. 1, 14–20 (1985). “On 

plain-error review, the burden is on the defendant, and reversal is warranted only 

when: (1) the prosecutor’s statement is plainly improper and (2) the defendant 

demonstrates that the improper statement affected his or her substantial rights.” 

United States v. Vann, 776 F.3d 746, 759 (10th Cir. 2015) (internal quotation marks

omitted). “An error is plain if it is so clear or obvious that it could not be subject to any 

reasonable dispute.” United States v. Starks, 34 F.4th 1142, 1157 (10th Cir. 2022) 

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(citations omitted). And “to be clear or obvious, the error must be contrary to wellsettled law.” Id. (quoting United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008)). 

“In general, for an error to be contrary to well-settled law, either the Supreme Court or 

this court must have addressed the issue.” Id. (quoting United States v. Ruiz-Gea, 340 

F.3d 1181, 1187 (10th Cir. 2003)). 

Vouching occurs when the prosecutor asks the jury to evaluate the evidence 

based on his or her personal assurances about the evidence. “[W]hen reviewing 

vouching for plain error, we weigh the seriousness of the vouching in light of the 

context of the entire proceeding.” United States v. Harlow, 444 F.3d 1255, 1261 

(10th Cir. 2006). “[R]eversal is appropriate only if, after reviewing the entire record, we 

conclude that the error is obvious and one that would undermine the fairness of the trial 

and result in a miscarriage of justice.” United States v. Oberle, 136 F.3d 1414, 1421 

(10th Cir. 1998) (citations omitted). “The relevant context includes the curative acts of 

the district court, the extent of the misconduct, and the role of the misconduct within 

the case.” Starks, 34 F.4th at 1158 (citations omitted). Although “[w]e apply the 

plain error rule less rigidly when reviewing a potential constitutional error,” id. at

1157 (internal quotation marks omitted), “reversal in the absence of 

contemporaneous objection is a rare exception rather than the rule,” United States v.

Hill, 749 F.3d 1250, 1267 (10th Cir. 2014). 

Mr. Morris claims the prosecutor repeatedly and improperly vouched for B.M. 

in opening and closing arguments. “It is error for the prosecution to personally 

vouch for the credibility of its witnesses.” United States v. Bowie, 892 F.2d 1494, 

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1498 (10th Cir. 1990). But “[a]rgument or evidence is impermissible vouching only 

if the jury could reasonably believe that the prosecutor is indicating a personal belief 

in the witness’ credibility, either through explicit personal assurances of the witness’ 

veracity or by implicitly indicating that information not presented to the jury supports 

the witness’ testimony.” Id. See also United States v. Anaya, 727 F.3d 1043, 1053–

54 (10th Cir. 2013) (“Vouching requires either . . . explicit personal assurances of the 

witness’s veracity or . . . implicit[ ] indicat[ions] that information not presented to the 

jury supports the witness’s testimony.”) (citations omitted). Mr. Morris argues the 

prosecutor suggested a personal belief in B.M.’s credibility—through both explicit 

personal assurances and implicit indications. 

Mr. Morris challenges four categories of statements from the opening and 

closing arguments. We address each in turn. 

First, Mr. Morris argues the prosecutor provided explicit personal assurances 

of B.M.’s credibility in opening statements. The alleged improper statements are 

italicized below. 

We’re going to call B.M. to come testify and she’s going 

to tell you about the things that her father did to her, and 

you decide, do I believe her?

Now, I submit to you that as you’re listening to the 

evidence the things that you should keep in mind when 

you’re assessing B.M.’s credibility, we’ve talked about it. 

How can you tell if someone is telling the truth? How do 

you know to believe them?

The first thing I’m going to ask you to pay attention to as 

you’re listening to the evidence are the details that she 

gives. B.M. is going to tell you about these incidents that 

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happened. She’s going to be able to give you a level of 

detail that I think lends credibility to what she’s saying.

. . .

Her account is going to be very credible and very detailed 

about what she remembers happening to her.

. . .

So, members of the jury, I think when you take a look after 

you listen to all the evidence and you’re able to assess 

B.M., you’re able to assess B.M.’s testimony and you see 

the testimony from the nurse regarding the physical 

findings, when you look at all of that together I’m

convinced that at the end of this trial you’ll find beyond a 

reasonable doubt that the defendant -- that B.M. is telling 

the truth and we’re going to ask you to find the defendant

guilty on all four counts of aggravated sexual abuse and 

abusive sexual contact.

R. Vol. I. at 361–65 (emphasis added).

Although the prosecutor used “I” during opening statements, we have made 

clear that this is not a per se due process violation. See United States v. Jones, 468 

F.3d 704, 708 (10th Cir. 2006) (concluding the use of personal pronouns in closing 

argument was not a violation). It is also not plain that, in context, the prosecutor was 

attempting to express a personal opinion on B.M.’s credibility. Instead, the better 

interpretation is that the prosecutor was expressing that B.M.’s testimony would be 

very detailed. And “it is not improper for a prosecutor to direct the jury’s attention to 

evidence that tends to enhance or diminish a witness’s credibility.” Thornburg v. 

Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005). That said, statements such as these 

invite judicial scrutiny and should be avoided.

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While we doubt there was error, Mr. Morris certainly cannot show any plain 

error—let alone error affecting substantial rights. An error seriously affects the 

defendant’s substantial rights “when the defendant demonstrates that there is a reasonable 

probability that, but for the error claimed, the result of the proceeding would have been 

different.” United States v. Woods, 764 F.3d 1242, 1245 (10th Cir. 2014) (citations 

omitted). “A reasonable probability is a probability sufficient to undermine confidence in 

the outcome . . . [and] [i]t is the defendant’s burden to make this showing, even in a case 

of alleged constitutional error.” Starks, 34 F.4th at 1157 (citations omitted). Mr. Morris 

has not met his burden. 

“[F]actors relevant to determining whether the improper commentary affected the 

fairness of the trial include whether the instance was singular and isolated, whether the 

district court instructed the jury that the attorneys’ argument was not evidence, and 

whether there was substantial evidence of the defendant’s guilt.” Oberle, 136 F.3d at

1421 (citations omitted). But we need not discuss each factor. See id. (discussing only 

the first two factors).

When evaluating alleged errors not raised below, “we must be cautious of a 

tendency to seize upon errors which, removed from context, take on an aspect of 

seriousness which they never had below.” Id. (citations omitted). The statements Mr. 

Morris complains of make up a small part of the prosecutor’s opening argument and 

“did not significantly detract from the proper focus of the argument.” United States v.

Fleming, 667 F.3d 1098, 1106 (10th Cir. 2011). Instead, the comments in context show 

that the prosecutor was encouraging the jury to pay attention to the level of detail this 12-

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year-old could provide. The prosecutor also reminded the jury in closing that “you are 

the judges of credibility. Credibility and believability is left up to you.” R. at 860.

The district court, moreover, instructed the jury that statements and arguments 

made by the lawyers are not evidence, and that the case was to be decided solely on 

the evidence. The court also told the jury it was up to them to decide which 

witnesses to believe. And “a jury is presumed to follow its instructions.” Weeks v. 

Angelone, 528 U.S. 225, 226 (2000). “[C]urative instructions will typically immunize 

such a statement from affecting defendant’s substantial rights . . . [and] [w]hen the jury 

was properly instructed that [statements and] arguments are not evidence and that 

[defendant] [c]ould only be convicted on the basis of evidence submitted at trial . . .

we have consistently refused to find plain error based on misstatements by the 

prosecutor.” Vann, 776 F.3d at 760. We conclude that any error by the district court in 

not responding sua sponte is not reversible on plain-error review.

Next, Mr. Morris claims that the prosecutor, during closing, implicitly indicated 

the United States possessed information not presented to the jury. The italicized 

portions below represent the challenged statements:

You heard a lot of information from the defense about 

these injuries, about this urinary tract infection. But what 

did you hear from the United States? The only thing that 

Annette James came in here and told you is what she 

observed. That’s it. Spoiler alert. The United States does 

not care if there are injuries. Why? Because their own 

expert sat here and told you that in most sexual abuse 

cases, you will not see any injuries.

Jessica Stombaugh. Why is she important? She talks about 

disclosure and the disclosure process. Defense counsel has 

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sat up here and said that B.M. was inconsistent. She 

wasn’t inconsistent. She was going through a disclosure 

process. Child victims are not like any other. It’s different.

That’s why people have specialized training in it. That’s 

why people testify as experts. It’s different. What was she 

inconsistent about? Being seven, eight or nine? Spoiler 

alert. The United States doesn’t care.

The law says in regards to credibility what does a 

discrepancy have to do with a material fact? Jessica 

Stombaugh told you she might not remember the age. But 

what do they associate? They associate grade levels. They 

associate teachers. They associate homes. And all of this 

happened in the home the defendant got from his mother. 

That’s what’s important.

R. Vol. I at 885–86 (emphasis added).

Mr. Morris claims the prosecutor told the jury to rely on the prosecution’s 

statements and the government expert, and that “[i]mplicit in this suggested reliance 

(on the prosecutor) is that the prosecutor and the government expert possessed 

information that wasn’t presented at trial, but that supported a guilty verdict.” Aplt. 

Br. at 19. He also claims the prosecutor implied the disputed evidence did not 

matter, and that the reasonable inference from such an implication is that the 

prosecutor was aware of information not shared with the jury. We disagree with Mr. 

Morris’s characterization of these comments. No reasonable jury would believe the 

prosecutor was implying awareness of information not presented to the jury, and that 

such unknown evidence supported B.M.’s testimony. Thus, there is no plain error.2

2 Mr. Morris also tries to frame the statement about Jessica Stombaugh as improper 

vouching, but this argument is meritless.

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Third, Mr. Morris alleges the prosecutor asked the jury, during closing, to act 

as the community conscience and return a guilty verdict to perform its civic duty. “It 

is improper for a prosecutor to suggest that a jury has a civic duty to convict.” 

Thornburg, 422 F.3d at 1134. “Prosecutors are not permitted to incite the passions of 

the jury by suggesting they can act as the ‘community conscience’ to society’s 

problems.” United States v. Rogers, 556 F.3d 1130, 1143 (10th Cir. 2009). “Appeals 

to the jury’s emotion or sense of vengeance call[ ] into question the integrity of the 

criminal justice system by encouraging the jury to convict based on outrage, and not 

on the evidence.” Wilson v. Sirmons, 536 F.3d 1064, 1121 (10th Cir. 2008) (internal 

quotation marks omitted). 

The prosecutor stated: “What does the government want from Mr. Morris? 

Well, the United States is asking that Mr. Morris stop sexually abusing his daughter. 

That’s what we’re asking today.” R. Vol. I at 886–87. This was not a request to the 

jury to act as the community conscience. In an instructive case, Thornburg v. Mullin, 

we held the following comments did not amount to an appeal to community 

conscience: 

Justice must run in this case for three victims, for Donnie 

Scott. Mr. Thornburg has got to be told what he did was 

wrong. Not only was it wrong, this was terrible, folks.

One of you said about mass murder. One of the problems 

in our society is mass murder, violence, drugs, guns. This 

is a mass murder. This is three helpless people who were 

gunned down, kidnapped tortured, burned alive and left 

dead in a house.

422 F.3d at 1134 (emphasis added).

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We concluded that the “prosecutor’s comments were firmly rooted in the facts 

of the case. We see little, if any, impropriety.” Id. Similarly, here, the prosecutor’s 

comment was rooted in the facts of the case—that Mr. Morris was sexually abusing 

his daughter. Mr. Morris argues the government misstated the evidence because 

there was no evidence in the record that he was “roaming free, preying on his 

daughter.” Aplt Br. 24. But there was certainly evidence in the record he sexually 

abused his daughter. Mr. Morris also fails to argue why this statement caused him 

substantial prejudice. 

Fourth, Mr. Morris argues the prosecutor at closing misstated the 

government’s burden of proof. “It is improper for the prosecution to misstate the law 

in its closing argument.” United States v. Hollis, 971 F.2d 1441, 1455 (10th Cir. 

1992). He contends the government equated the presentation of evidence with 

providing proof beyond a reasonable doubt. The prosecutor’s alleged misconduct is 

emphasized below:

The law specifically states that testimony is direct 

evidence. Testimony. What B.M. said is direct evidence. 

So don’t let the defense tell you the United States has not 

met our burden because the evidence is B.M.’s testimony.

You are allowed to use your common sense. That’s why 

it’s in the instruction. You’re allowed to use your common 

sense to look at testimony, to look at evidence.

R. Vol. I at 889.3

3 Mr. Morris also claims this statement constitutes both forms of improper witness 

vouching, but that argument is inadequately briefed and meritless.

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Mr. Morris contends this statement directed the jurors to ignore the “beyond a 

reasonable doubt standard” and to find the government satisfied its burden by simply 

presenting evidence. But Mr. Morris again mischaracterizes this statement and fails 

to demonstrate substantial prejudice. There is no implication from this comment that 

the prosecutor believed Mr. Morris was guilty only because B.M. testified against 

him. Defense counsel also argued in closing that the government lacked physical 

evidence, and “[w]e generally give prosecutors latitude in making closing arguments 

when defense counsel invites the argument.” Anaya, 727 F.3d at 1056 (citations 

omitted). In addition, the jury was instructed that the defendant is presumed 

innocent, the burden of proof is on the government, and the government must prove 

guilt beyond a reasonable doubt. 

Finally, Mr. Morris argues all the alleged errors, taken together, deprived him 

of a fair trial. “To analyze cumulative error, we aggregate all the errors that we have 

found to be harmless and determine whether their cumulative effect on the outcome of 

the trial mandates reversal.” Id. at 1060–61 (internal quotation marks omitted). 

“Cumulative error analysis applies only if true errors occurred,” id., and we have not held 

that any errors occurred here. Even if we had held otherwise, Mr. Morris failed to show 

he was substantially prejudiced. 

Mr. Morris argues that, because of all the alleged misconduct, the jury could not 

question B.M.’s credibility or fairly weigh the evidence. If the jury had, according to Mr. 

Morris, there is a reasonable probability he would not have been convicted. We disagree. 

The jury was properly instructed that statements and arguments made by the lawyers 

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are not evidence. And the alleged improper statements make up only a small part of the 

opening and closing arguments and were “simply not egregious enough to influence the 

jury to convict on grounds other than the evidence presented.” Rogers, 556 F.3d at

1143 (internal quotation marks omitted). On appeal, we must ask, in the context of the 

entire trial, if the alleged misconduct “significantly detract[ed] from the proper focus of 

the argument.” Oberle, 136 F.3d at 1422. We conclude they did not. 

Further, although Mr. Morris argues otherwise, the government presented 

significant evidence to permit a reasonable fact finder to conclude beyond a 

reasonable doubt that Mr. Morris abused his daughter, including (1) evidence of 

pornography described by B.M. on Mr. Morris’s phone, (2) B.M.’s brother’s

testimony, and (3) expert testimony. The evidence was enough for the jury to convict 

without the alleged misstatements. Thus, the error was neither plain nor did it affect 

substantial rights. 

We do, however, remand this case to the district court to correct the 

discrepancies between the oral and written conditions of Mr. Morris’s supervised 

release. In sentencing a criminal defendant, “[t]he sentencing judge must announce the 

sentence such that the defendant is aware of the sentence when leaving the courtroom.” 

United States v. Geddes, 71 F.4th 1206, 1214 (10th Cir. 2023). “If a written judgment 

and orally pronounced sentence conflict, ‘[i]t is a firmly established and settled principle 

of federal criminal law that an orally pronounced sentence controls.’” Id. (quoting 

United States v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987) (en banc)).

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The district court orally pronounced conditions of supervised release at 

sentencing. Then, in the written judgment, it included 13 additional discretionary 

conditions of supervised release that had not been orally pronounced at the sentencing 

hearing. The government agrees that the “unpronounced conditions of supervised release 

added to the written judgment after the sentencing hearing should be stricken as 

inconsistent with the oral pronouncement of sentence.” Aple. Br. at 26. 

III. Conclusion

We AFFIRM Mr. Morris’s convictions but REMAND the case to the district 

court to correct the discrepancy between the oral and written conditions of supervised 

release. 

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

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