UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff – Appellee,

v. DEANDRE ANTONIO HOPKINS, a/k/a Wet, a/k/a C-Wet, a/k/a Sman, Defendant – Appellant. No. 13-5072 (D.C. No. 4:12-CR-00050-JHP-3) (N.D. Okla.)

ORDER AND JUDGMENT 

Before HARTZ , PHILLIPS , and McHUGH , Circuit Judges.
Deandre Hopkins was indict ed, tried, and convicted of conspiring to rob banks, credit unions, and pharmacies in Tu lsa, Oklahoma. The district court denied Deandre’s motion for judgment of acquittal, finding that the evidence at trial established the conspiracy as charge d. Deandre appeals. We hold that there was a variance between the conspiracy charged and the evidence presented at trial, but we hold that it was not substant ially prejudicial. We therefore affirm the district court.

 This order and judgment is not binding precedent except under the doctrines of law of the case, claim preclusion, and issue preclus ion. It may be cited, however, for its persuasive value consis tent with Federal Rule of Appellate Procedure 32.1 and Tent h Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 22, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - Deandre also raises three other issues. He appeals the denial of his motion in limine to exclude gang-affiliation evidence. He also argues that his conviction for the conspiracy violates the Double Jeopar dy Clause. We affirm the district court on these two issues. Finally, he argues th at there has been cumulative error. We hold there are insufficient errors to conduct a cumu lative error analysis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm D eandre’s convictions on all counts.

I. FACTS AND PROCEDURAL HISTORY Following a series of robberies in Tulsa, the local police bega n to suspect that the robberies were connected . They developed a list of suspects, which included Deandre. The police were interested speci fically in seven robberies that took place from August 2009 to November 2011: (1) IBC Bank; (2) Dooley’s Pharmacy; (3) T. Roy Barnes Pharm acy (“Barnes Phar macy”); (4) Metro Pharmacy and Medical Supplies (“Metr o Pharmacy”); (5) CVS Pharmacy; (6) Tulsa Municipal Employees Federal Credit Union (“Tulsa Credit Union”); and (7) Arvest Bank. They came to believe that these robberi es had been committed as part of a larger conspiracy by members of the Hoover Cr ips, a Tulsa street gang.- 3 - Based on this investigation, a fede ral grand jury returned a ten-count indictment against a group of eight coconspirators, 1 charging that the group had conspired together to commit six of the seven robberies in violation of 18 U.S.C. § 1951(a). 2 Deandre was indicted as a member of this conspi racy. Deandre was also charged with committing two of th e robberies—Metro Ph armacy and Tulsa Credit Union—and for aiding and abetti ng the use of a firearm during and in relation to each of the two robberies (crimes of violence) under 18 U.S.C. § 924(c)(1)(A)(ii). 3 Deandre had already been tried and convicted in federal court

1 The indictment named eight defenda nts: Vernon Hill, Christopher Lewis, Deandre Hopkins, Marquis Devers, Dontayne Tiger, James Miller, Kenneth Hopkins, and Dejuan Hill. Throughout this opinion, we will refer to Vernon, Dejuan, and Deandre by their first names be cause there were ot her coconspirators indicted with the same la st names. Deandre, Vernon, and Dejuan were the only defendants who proceeded to trial. All of the other indicted coconspirators pleaded guilty before trial. Vernon, Dejuan, and Deandr e were convicted of all charges. Vernon appeals his c onviction in a related appeal. United States v. Vernon Hill , __ F. App’x __, No. 13-5084 (10th Cir. May 22, 2015) (unpublished). Dejuan Hill does as well. United States v. Dejuan Hill , __ F.3d __, No. 13-5074 (10th Cir. May 22, 2015).

2 The CVS Pharmacy robbery was not charged against any of the coconspirators, nor was it li sted as an overt act fo r Count One. Instead, the government used this eviden ce against Vernon in an at tempt to tie him to the other robberies.

3 In more complete part for the Metro Pharmacy r obbery: “[T]he defendants, aiding and abetting each other, knowingly us ed, carried and bra ndished firearms during and in relation to a crime of violen ce . . . .” Also, in more complete part for the Tulsa Credit Union robbery: “[T]he defendants , and others known to the Grand Jury, aiding and abetting each othe r, knowingly used, carr ied, brandished- 4 - for the underlying substantive offe nse of robbing the Barnes Pharmacy . The government used the Barnes Pharmacy robbery as an ove rt act for the Count One conspiracy charge. On app eal to this court for the Barnes Pharmacy robbery charge (not the conspir acy charge), we affirmed his robbery conviction. United States v. Hopkins , 528 F. App’x 782, 782–84 (10t h Cir. 2013) (unpublished).

A. Barnes Pharmacy In May 2010, four armed men wearing hoodies, cut-off shir tsleeves wrapped around their faces, and glove s robbed the Barnes Pharm acy. The robbers arrived in a stolen car, took drugs and cash, and stole the pharmacist’s car for the getaway. The car was late r found abandoned nearby, w ith a bag containing the face coverings. Deandre’s DN A was on one of the face c overings left in the car. A jury convicted Deandre of this robbery, and we af firmed his conviction on appeal. Hopkins , 528 F. App’x at 782–84.

B. Metro Pharmacy This robbery occurred in August 2011 . Duncan Herron, the government’s cooperating witness, who had been a part of the larger conspiracy at one time but had made a deal with the gov ernment, testified at trial to having participated in
and discharged firearms during and in relation to a crime of violence . . . .”- 5 - the Metro Pharmacy robbery, and he na med Christopher Lewis, Marquis Devers, and Vernon Hill as coconspirators. He also later named Dontayne Tiger and Deandre as coconspirators. Herron admitted to meeting with th e group to plan th e Metro Pharmacy robbery on August 13, 2011. Late r that day, the group carri ed out its plan. Herron walked into the pharmacy to buy some medicine, texted De vers as he was leaving, and held open the door for Lewis and Devers (because customers had to be buzzed into the pharmacy). Deandr e had given Herron $10 to buy the medicine. Lewis, Ve rnon, and Devers then robbe d the pharmacy with guns. Herron testified that bot h Tiger and Deandre were lookouts during the Metro Pharmacy robbery. 4 After the robbery, the men got into a van that was parked outside of the pharmacy and drove away. As instructed by Tiger, Herron called 911 to report the robbery after the other men drove away, attempting to divert police attention from his involvement. Included within the evid ence admitted at tria l were cell phone records establishing that Devers had called Me tro Pharmacy twice before the robbery,

4 Deandre disputes the cr edibility of this testim ony because Herron had not named Deandre as a participant at first, but he later changed his account of the Metro Pharmacy to include De andre. On appeal, we take the evidence in the light most favorable to the government, and we do not weigh th e credibility of witnesses. United States v. Hamilton , 587 F.3d 1199, 1206 (10th Cir. 2009).- 6 - that Devers and Herron had communicate d by text message during the robbery, and that Lewis and Ver non communicated by cell phone during the robbery.

C. Tulsa Credit Union In September 2011, a group of assailan ts robbed the Tulsa Credit Union. Herron testified at trial that he, Tiger, Deandre, Lewis, James Miller, and Devers participated in this robbe ry. Devers and Deandre pick ed up Herron and drove to an apartment to plan the robbery, wher e the others were al ready waiting. After this meeting, Herron, De vers, Miller, and Deandre drove to an apartment complex, where they stole a Jeep to use in the robbe ry. Deandre and Tiger then drove the group to the bank in separate cars. Miller, Devers, and Lewis robbed the bank, wearing hoodies, face coverings, and gloves, and carrying guns. One of them fired a gun. The robbers demanded money from multiple tellers, and one teller gave them $170,000 from the vault. Witnesses saw the r obbers drive away in the stolen Jeep. Lewis, Devers, and Miller got into the Jeep parked outside the credit union, and Herron drove the stolen Jeep around the corner. Once around the corner, Herron, Miller, and Devers got into a car with Deandre. Lewis got into a separate car with Tiger. Th ey left the Jeep there and all drove to Miller’s sister’s house, and police recovered the Jeep later that day. The group, including- 7 - Deandre, then divided th e money between themselves . Herron received $7,000 for his role in the robbery.

D. The Larger Conspiracy The government’s theory of the case at trial was th at all eight individuals indicted had conspired, generally, to commit bank , credit union, and pharmacy robberies in Tulsa. Most of the evidence establishing this larger conspiracy centered on each coconspirator’s relati onship with the Hoover Crips. The government also highlighted the similarities between the robberies. Apart from the three robberies in which Deandre was involved, the gove rnment elicited testimony about four othe r robberies—IBC Bank, Dooley’s Pharmacy, CVS Pharmacy, and Arvest Bank—but there wa s no evidence linking Deandre to any of those robberies. Because Deandre’s trial included the global conspiracy charge and was joined with Ver non’s and Dejuan Hill’s, hi s trial included evidence regarding these four robberies . But he was not indicted, charged, or convicted for committing any of them.

E. Procedural History- 8 - After the government rested its case, Deandre move d for a Rule 29 judgment of acquittal on Count One, the conspira cy charge, arguing that the government had failed to prove interd ependence. The district c ourt denied the motion. The jury convicted Deandre on all fi ve charges against him. On appeal, Deandre raises four issues. First, he argues that there was insufficien t evidence of interdependence to support hi s conviction for the global conspiracy. As part of this issue, he argues that there was a substantially pr ejudicial variance between the indictment and what th e government proved at tria l. Second, Deandre appeals the denial of his motion to exclude the gang evidence under Fed. R. Evid. 403. Third, he argues that because he had already been convict ed for the Barnes Pharmacy robbery, his late r conviction for conspiring to commit that same robbery violated the Double Jeopardy Cl ause. Fourth, he argues that there was cumulative error.

II. VARIANCE To prove a conspiracy, the government must show: (1) that two or more persons agreed to violate the law; (2) that the defendant knew at least the essential objectives of the conspiracy ; (3) that the defendant knowingly and voluntarily became a part of the c onspiracy; and (4) that the alleged coconspirators were interdependent. United States v. Sells , 477 F.3d 1226, 1235- 9 - (10th Cir. 2007). Deandre di sputes only whether th e government introduced enough evidence to establish the fourth element, interdependence—and more importantly, whether the government’s fa ilure to introduce sufficient evidence constitutes a fatal variance. 5 We treat a conspiracy vari ance claim as an attack on the sufficiency of the evidence supporting the jury’s finding that each defendant was a member of the same conspiracy. United States v. Carnagie , 533 F.3d 1231, 123 7 (10th Cir. 2008) (citing United States v. Griffin , 493 F.3d 856, 862 (7th Cir. 2007)). We review challenges to the sufficiency of the evidence de novo. United States v. Wells , 739 F.3d 511, 525 (10th Cir. 2014). We mu st take the evidence and draw all reasonable inferences in favor of the government. Id. “Distinguishing between a single, large conspiracy a nd several smaller c onspiracies is ofte n difficult; we will generally defer to the jury’s determination of the matter.” United States v. Caldwell , 589 F.3d 1323, 1329 (10t h Cir. 2009). We review de novo the existence of a variance that wo uld support acquittal as a matter of law. Id. at 1328.

5 In his Brief, Deandre discusses whethe r he could be found guilty of aiding and abetting the robberies, rather than conspiring to commit the robberies. The government argues that Deandr e did not raise this argumen t to the district court, nor did he challenge the sufficiency of the eviden ce as to his § 924(c) convictions. In his Reply Br ief, Deandre admits that he only discusses aiding and abetting as a rhetorical devi ce to challenge interdepende nce. We conclude that the issue of aiding and abetting is not properly before th is court and thus do not consider it. For the same reasons, we do not consider the sufficiency of the evidence for his § 924(c) convictions.- 10 - Interdependence is the focal point for determining whether a single conspiracy existed. Id. at 1329. “Interdependence exists wh ere co-conspirators ‘inten[d] to act together for thei r shared mutual benefit within the scope of the conspiracy charged.’” Id. (alteration in original) (quoting United States v. Evans , 970 F.2d 663, 671 (10th Cir. 1992)). This requires that “each [coc onspirator’s] activities ‘constituted essential and in tegral steps toward the realization of a common, illicit goal.’” United States v. Edwards , 69 F.3d 419, 4 31 (10th Cir. 1995) (quoting United States v. Fox , 902 F.2d 1508, 1514 (10th Cir. 1990)). Interdependence is often prov ed by circumstantial evidence, United States v. Hutchinson , 573 F.3d 1011, 1035 (10th Cir. 2009), and it do es not require proof that the conspirators know the identities or details of each scheme or have connections with all other members of the conspiracy, United States v. Foy , 641 F.3d 455, 465 (10th Cir. 2011) (r eviewing a sufficiency cha llenge for plain error). “A variance arises when an indictment charges a single conspiracy but the evidence presented at tria l proves only the existence of multiple conspiracies.” Carnagie , 533 F.3d at 1237 (citing United States v. Ailsworth , 138 F.3d 843, 848 (10th Cir. 1998)). This const itutes reversible error only if it is prejudicial and affects the defendant’s substantial rights. 6 Edwards , 69 F.3d at 433; Caldwell ,

6 In his Brief, Deandre argues that “a defendant is prejudiced if the Government convicts him of one general c onspiracy when, in fact, the evidence- 11 - 589 F.3d at 1333. We explained in United States v. Windrix that “[a] defendant’s substantial rights are not prejudiced mere ly because the defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” 405 F.3d 1146, 1154 (10th Cir. 2005) ( quoting United States v.
Harrison , 942 F.2d 751, 758 (10th Ci r. 1991)) (internal quot ation marks omitted). Prejudice can occur in a number of ways. First, it can arise when the defendant did not have sufficient notice of the charges. Id. ; see also Carnagie , 533 F.3d at 1241 (citing United States v. Stoner , 98 F.3d 527, 536 (10th Cir. 1996)). “When an indictment charges a conspiracy am ong multiple individuals, it generally provides sufficient notice to a defendant that she must defend against the smaller conspiracies.” Caldwell , 589 F.3d at 1333. Second, “[ a] defendant’s substantial rights are affected in the context of a variance when the jury determines a defendant’s guilt by relying on evidence adduced against co conspirators who were involved in sepa rate conspiracies.” Edwards , 69 F.3d at 433. To evaluate whether a prejudicial guilt-spi llover effect such as this occurred, reviewing courts look to three factors: (1) wh ether the separate conspiracies affe cted the jury’s proves that there were se veral smaller conspiracies .” Appellant’s Br. at 19–20 (citing United States v. Kotteakos , 328 U.S. 750 (1946)). Deandre’s characterization of Kotteakos is incorrect. In Kotteakos , the Supreme Court required that the defendant show some prejudice beyond just the fact that the evidence only established smalle r conspiracies. 328 U.S. at 773–74.- 12 - ability to evaluate each defendant’s individual actions ; (2) whether the variance caused the jury to misuse evidence; and (3) the st rength of the evidence underlying the conviction. Carnagie , 533 F.3d at 1241. Deandre argues that the government fail ed to prove interdependence for a global conspiracy to commit robberies in Tulsa. Instead, he argues, the evidence established only several, smaller conspiracies to commit specific robberies, resulting in a variance betw een the indictment and what the government proved at trial. He further argues that he was prejudiced by a substa ntial guilt-spillover effect when the government associated hi m with crimes for which it did not prove his direct involvement. The government argues that no variance between the conspiracy charged and the evidence adduced at trial occurred and that even if a variance occurred it was not prejudicial. The government’s theory at trial was that Deandre and his coconspirators were member s or affiliates of the H oover Crips and that, through this association, they conspired to commit the six r obberies listed as overt acts in
Count One. We agree with Deandre that the reco rd shows insufficient evidence of a common unlawful goal or purpose to prove the global conspiracy. See United States v. Daily , 921 F.2d 994, 1007 (10th Cir. 1990) (“[T]he focal point of the [interdependence] analysis is whether the alleged co-cons pirators were united in a- 13 - common unlawful goal or purpose.”), overruled on other grounds by United States v. Gaudin , 515 U.S. 506 (1995). As we explained in Carnagie , “[t]his common goal, however, is not by itself enough to establish interdependence: [w]hat is required is a shared , single criminal objective, not just similar or parallel objectives between simila rly situated people.” 533 F.3d at 1239 (emphasis in original) (internal quotation marks omitted) (quoting Evans , 970 F.2d at 671). So even though the general objective of the indi vidual robberies was to rob businesses of money or drugs, that does not n ecessarily mean that the separate groups were interdependent. See id. After reviewing the record, we conclude that there is insufficient evidence of one common global conspiracy ; instead, we see evidence of smaller, individual conspiracies. To begin, not all of the robberies were committed by the same men. While this does not foreclos e the possibility that ther e was a global conspiracy, we find it important to note that a different group of men robbed each bank, albeit with some overlap among the groups. Fu rther, the governme nt introduced no evidence that proceeds from a ny individual robbery were ever shared with anyone not directly participating in that r obbery. Additionally, the government did not establish that one person directed all of the conspirators , which would have allowed the jury to infer th at he was calling th e shots. To the contrary, the jury was left to infer that because all of the conspirators were members or affiliates of- 14 - the Hoover Crips, they must have ha d a shared criminal goal sufficient to establish interdependence. We think, as a matter of law, that this is insufficient.
In United States v. Robinson , 978 F.2d 1554, 1563 (10th Cir. 1992), we explained that while gang affiliation ev idence can be probativ e circumstantial evidence of agreement, purpose, and knowl edge for a conspiracy, gang-affiliation evidence “alone could not support a conviction.” In that case, unlike here, other evidence beyond gang membership he lped establish the conspiracy. See id. For the conspirators in this case, we see no evidence, other than gang membership, that shows or even provides an inference of a shared criminal goal to commit the global conspiracy. The government asserts that the common alities between th e robberies should be enough. We disagree. While commonalit ies might be suffici ent if the means and method were unique in some wa y, that was not the case here. Cf., e.g. , United States v. Carroll , 207 F.3d 465, 469 (8th Cir. 2000) (applying Fed. R. Evid. 404(b) to determine whethe r the characteristics shar ed by two robberies were similar enough to form a modus operandi and concluding that wearing a nylon mask, carrying a gun, vaulting over the c ounter, and putting mone y in a bag were not sufficiently unique). The use of mask s, guns, bags, threat s, and getaway cars does not elevate this string of robberies to one where we can infer th at the same group orchestrated or carrie d them out. The government tried to rely on the gang-- 15 - affiliation evidence to link all of these facts together and pa int a picture of a gang-based robbery cons piracy. It also cited the di scharge of firearms and the demand of money and controll ed substances during the r obberies in an attempt to prove interdependence. To us, this manner of comm itting these r obberies seems common, not unique. Even further, no evidence s howed that the individual robberies “benefitted from or depended upon the success of the” other robberies. See Carnagie , 533 F.3d at 1240 (citing United States v. Yehling , 456 F.3d 1236, 1 241 (10th Cir. 2006) (“[E]ach coconspirator’s ‘actions mu st facilitate the endeavors of other alleged coconspirato rs or facilitate the ventur e as a whole.’” (quoting Evans , 970 F.2d at 670))). In fact, each individua l robbery may well have harmed—not benefitted—the charged coco nspirators not participati ng in a particular robbery. After each robbery, police became more alert to future re lated robberies and concentrated on the involvement of individual Hoover Crips. Therefore, we conclude that th ere was insufficie nt evidence of interdependence introduced at trial to prove a globa l conspiracy on the scale charged by the government. While the gove rnment failed to prove the global conspiracy charged in the i ndictment, our inquiry is not complete. We must still consider whether the trial evidence established several smaller conspiracies to commit the individual, charged robberies. See, e.g. , Caldwell , 589 F.3d at- 16 - 1332–33. We conclude that th e government introduced suff icient evidence at trial to show that Deandre, with others, co nspired to rob the Barnes Pharmacy, the Metro Pharmacy, and the Tulsa Credit Uni on. Deandre all but concedes this on appeal. 7 See Appellant’s Br. at 12 (“[T]he single conspi racy alleged in the indictment was not borne out by the tria l evidence, which showed not a rigid conspiracy, but rather (at most) a string of smaller conspiracies centered around the robberies. This was a fa tal variance between the allegations and the trial evidence which warrants reversal.”). Had Count One of the indictment charge d Deandre with conspiring separately to commit his three robberi es, we could affirm thos e conspiracy convictions because Deandre does not ch allenge the sufficiency of the evidence for the smaller conspiracies . But when the government inst ead chose to charge Deandre with conspiring to commit the global conspiracy and fa iled to prove that global

7 Even if Deandre did not concede this point on appeal, we think that the evidence establishing the Ba rnes Pharmacy, Metro Phar macy, and Tulsa Credit Union robberies was sufficient to prov e three individual c onspiracies. For the Barnes Pharmacy robbery, four men robbed the bank, arriving in a stolen car, and Deandre’s DNA was found on one of th e face coverings recovered from the abandoned car. For the Metro Pharmacy r obbery, Duncan Herron testified that Deandre had helped plan the robbery, s upplied Herron with money to be buzzed into the pharmacy, acted as a lookout during the robbery, and was a getaway driver. Finally, for the Tulsa Credit Uni on robbery, Herron testified that Deandre helped steal a car for the robbery, drove the coconspirators to the credit union, and acted as a getaway drive r. We think that al l three robberies have sufficient evidence to establis h three conspiracies.- 17 - conspiracy at trial, it cau sed a variance. We must dete rmine whether this variance requires us to vacate De andre’s conviction for Count One. As we discussed above, prejudice can occur in two ways: firs t, it can arise when the defendant did not have sufficient notice of the smaller conspiracies ; second, a defendant can suffer a prejudicial gu ilt-spillover effect. For the first type of prej udice, we conclude that th e indictment adequately notified Deandre that he had to defend ag ainst the smaller cons piracies proved at trial. See, e.g. , Caldwell , 589 F.3d at 1333 (concluding th at when an indictment charges a conspiracy among multiple peopl e, the indictment generally provides sufficient notice to a defendant that he must defend against the smaller conspiracies). The indictment fully cont emplated the smalle r conspiracies. The conspiracy charged in the i ndictment recited the charge d robberies as overt acts. See, e.g. , Carnagie , 533 F.3d at 1241 (finding no prejudice because the defendants knew that the smaller conspira cies were “part a nd parcel” of the overall conspiracies charged) (quoting Ailsworth , 138 F.3d at 850). Based on the indictment charges, Deandr e was accused of participa ting in three robberies. The indictment notified him of th e importance of his membersh ip in the Hoover Crips. Because Deandre could anticipate the trial evidence, he cannot reasonably contend that he was insufficiently not ified of the char ges against him. Id.- 18 - For the second type of prejudice, we conclude that ther e was no prejudicial guilt-spillover in this case. We apply the thre e factors discussed in Carnagie : First , whether the prolifera tion of separate crim es or conspiracies presented in the case impaired the jury’s ability to segregate each individual [conspirator’s] actions and the evid ence associated with [her or] his pa rticipation; Second , whether confusion among members of the jury concerning the legal limitations on the use of cer tain evidence re sulted from the variance; and, Third , the strength or weakness of th e evidence underlying the jury’s conviction. 533 F.3d at 1241 (alterations in original) (quoting Harrison , 942 F.2d at 758).

A. The Evidence of Se parate Conspiracies

Did Not Impair the Jury’s Deliberation We conclude that the jury could segr egate each charged defendant’s actions. We are aware that, as the Supreme Court explained in United States v. Kotteakos , the risk of prejudice incr eases when ther e are more defendants tried and conspiracies proved. 328 U. S. 750, 766–67 (1946). In th at case, more than 30 people were indicted, 19 were tried together initially, 13 went to the jury, and at least eight separate cons piracies were proved. Id. The Court announced no fixed rule for prejudice based on the numbers. See generally id. Instead, in measuring substantial prejudice, c ourts must look to the facts of e ach case. See generally Carnagie , 533 F.3d at 1242 (concludi ng that trying three de fendants together for- 19 - three separate conspiracies , given other factors, did not constitute prejudice). Here, the government tried three de fendants together and proved five conspiracies. 8 As in Carnagie , “the number of defendant s tried and co nspiracies proven do not reach the magnitude of Kotteakos , and thus the risk of prejudice is not as great.” Id.

B. Evidentiary Spillover For two reasons, Deandre claims that ev identiary spillover prejudiced him: (1) “[T]he effect [of ‘guilt transferen ce’] was pronounced for [Deandre] because of the Government’s use of gang evidence to taint all conspira tors”; and (2) he was exposed to a general ri sk of guilt transf erence from the ev idence presented against other conspirators from the othe r robberies. We are unpersuaded by his fi rst argument. As we expl ain later, we conclude that the gang-affiliation ev idence was properly admitted against Deandre. Even had Deandre been tried only for conspiring to commit the thr ee smaller robberies, the gang evidence would still have been probative of hi s and his coconspirators’ purpose, knowledge, and intent in comm itting the three robberies. As to his second argument, the evidence demonstrated five separate conspiracies, each to

8 We do not include the IBC Bank robber y because we conc luded in Vernon’s appeal that there was insuff icient evidence to establish a conspiracy to rob that bank. Hill , __ F. App’x __, No. 13-5084. We also do not include the CVS Pharmacy robbery because th at robbery was not even ch arged in the indictment.- 20 - commit a separate robbery. As in Carnagie , the evidence here wa s not so intricate that it rendered the jury unable to segregate each de fendant’s individual actions.
See 533 F.3d at 1242. Also, the evidence fr om the other robberies was “of the exact same character” as the evidence from the th ree robberies involving Deandre. See id. at 1242–43. “We have held th at such a similarity between different transactions cu ts against a finding of substantial prejudice.” Id.

C. Strength or Weakness of Evidence Underlying Conviction Finally, we must consider the strength or weakness of the eviden ce underlying the jury’s conviction on Count One, meaning whether the evidence supported Deandre’s conviction of the “sma ller, separate conspiracies.” See Carnagie , 533 F.3d at 1243. As explained earlier, Deandre conceded on appeal that there was sufficient evidence to prove the smaller, separate conspi racies. We conclude that the government’s trial eviden ce was strong in proving th at Deandre conspired to rob and robbed the Barnes Pharmacy, the Metro Pharmacy, and the Tulsa Credit Union. During the Barnes Pharmacy robbery, f our armed men wearing hoodies, face coverings, and gloves robbe d the pharmacy, taking drugs and cash. The robbers arrived in a stolen car, and stole the pha rmacist’s car for the getaway. The police found the car abandoned nearby, with a bag containing th e face coverings.- 21 - Deandre’s DNA was on one of the face coverings left in the pharmacist’s car. This all is very strong evidence that Dea ndre conspired to rob and participated in the robbery. During the Metro Pharmacy robbery, Herr on testified about D eandre’s role in the robbery, including Deandre’s actions in: (1) meeting with the others to plan it; (2) giving Herron $10 to buy the medici ne (which was nece ssary to get the robbers into the pharmacy); and (3) acting as a lookout during the robbery. Finally, during the Tulsa Credit Union robbery, Herron testif ied that Deandre met with the group to help plan the robbe ry, helped steal a Je ep to use in the robbery, drove the group to the Tulsa Cred it Union, acted as a getaway driver, and helped divide the proceeds. In sum, there was sufficien t evidence for the jury to find Deandre guilty of the three, smaller conspiracies. Deandre has failed to dem onstrate that he suffered a substantially prejudicial variance. We affirm his conviction on Count One.

III. GANG-AFFILIATION EVIDENCE Under Fed. R. Evid. 403, a trial court may exclude “r elevant eviden ce if its probative value is substantia lly outweighed by a danger of . . . unfair prejudice . . . .” We review eviden tiary determinations for an abuse of discretion. United States v. MacKay , 715 F.3d 807, 839 (10th Cir. 2013 ). “Our abuse of discretion- 22 - review affords the district court consid erable discretion in performing the Rule 403 balancing test because di strict court judges have front-row seats during trial and extensive experience ruli ng on evidentiary issues.” United States v. Archuleta , 737 F.3d 1287, 1292 ( 10th Cir. 2013) (quoting MacKay , 715 F.3d at 839). We have held that where conspiracy is charged, “gang-affiliation testimony may be relevant.” Id. 1293–94 (citing multiple cases fro m this circuit allowing the admission of gang-affiliation ev idence to help prove conspiracy). Specifically, we deem gang-affiliation evidence as probative and “directly relevant” to establishing some of the el ements for a conspiracy—the agreement, purpose, and knowledge of coconspirators. Robinson , 978 F.2d at 1562. But gangaffiliation evidence alone cannot support a conviction. Id. at 1563. The government introduced eviden ce that Deandre and the other coconspirators were member s or affiliates of the H oover Crips. The government relied on this evidence to establish interdependence fo r the global conspiracy. In this regard, Herron testifie d that Deandre was a member of the 39 sect of the Hoover Crips. Along the same line, Offi cer Steven Sanders testified that the department considered D eandre a certified gang memb er, relying on the Tulsa police department’s system for “cer tifying” people as gang members.- 23 - Before trial, Deandre fi led a motion in limine, seeking to prevent the government from introducing any evidence a bout his affiliation with the Hoover Crips. He argued that the gove rnment could not show with certainty that he was a gang member or that the r obberies were sanc tioned by the gang’s leadership. He also argued under Fed. R. Evid. 403 that th e danger of unfair prejudice from this evidence would substantia lly outweigh its probative va lue. The district court denied Deandre’s motion, concluding that the gang-af filiation evidence was circumstantial evidence s upporting the conspiracy ch arge. The court also concluded that the probativ e value of the evidence outweighed any danger of unfair prejudice. On appeal, Deandre argue s that the gang evidence caused “the negative aspects of the gang [to be] imputed to him.” 9 Accordingly, he urges this court to reverse and remand for a new trial. 10 The government argue s that the probative

9 Deandre submits two cases from this court for th e proposition that “mere gang membership, by itself , is not evidence of crim inal activity.” He cites United States v. Roach , 582 F.3d 1192, 1202 ( 10th Cir. 2009) (hol ding that the gang evidence was too stale to establish probable cause for a search warrant), and Robinson , 978 F.2d at 1563. Deandre’s argume nt misses the point. Here, the government used the gang-affiliation evid ence as circumstantia l evidence that the conspirators agreed about the conspiracy’s purpose and to show they knew about the conspiracy, not as evidence of independent criminal activity.

10 The government contends that the motion in limine was narrower than Deandre contends on appeal . The government explai ns, “[I]n his motion in limine, [Deandre] specifically move d to prohibit the government from- 24 - value of the evidence was not substan tially outweighed by th e danger of unfair prejudice. Even if it was an abuse of discretion to admit the evidence, the government asserts that the error was harmless. We conclude that the dist rict court did not abuse its discretion. When the district court ruled on the motion in limine, the coconspirators were set for a joint trial based on the global co nspiracy count. The probati ve value of the gang evidence for th at count was considerable. We must remember that the three defendants at trial had disputed in terdependence by arguing that not all coconspirators knew each other or ha d a joint motive. Th erefore, the gangaffiliation evidence was circumstanti al evidence opposing that argument. See Robinson , 978 F.2d at 1562–63 (“Circumstantial evidence is ofte n the strongest evidence of conspiracy.”). Ev en for the individual conspira cies that we re actually established at trial, this ev idence had probative value. Additionally, the danger of unfair prej udice was limited, given that the gangaffiliation evidence was onl y a small part of the evid ence linking Deandre to the ‘introducing evidence at tria l of any alleged affiliati on of the Defendant, Deandre Hopkins, with the Hoover Cr ips street gang.’” On appeal, however, Deandre characterizes the scope of his motion more broadly, asserting that the motion sought “‘to restrict the government from introducing ga ng evidence’ altogether.” To the extent the government is correct, this distincti on may be relevant as it would compel us to review Deandre’s clai ms for plain error ra ther than abuse of discretion. We need not reso lve this dispute, however, because we c onclude that all of the gang evidence wa s admissible even under the less defe rential abuse of discretion standard.- 25 - individual conspi racies and robberies. There was other evidence, both direct and circumstantial, tending to show that D eandre was involved. For instance, the police found Deandre’s DNA in the geta way car for the Barnes Pharmacy robbery. For the Metro Pharmacy robbery, Herron testified that Deandre helped plan the robbery, gave Herron money to use to get into the building, and acted as a lookout during the robbery. Herron also testified about Deandre’s involvement in the Tulsa Credit Union robbery, e xplaining that Deandre was the getaway driver. The jury was not left to re ly solely on Deandre’s purported gang membership in determining whether he wa s a member of the conspiracy and had participated in the robberies. Given the high degree of probative value and the limited danger of unfair prejudice, we conclude that the district court did not abuse its discretion under Rule 403 in admittin g the evidence.

IV. DOUBLE JEOPARDY The Supreme Court has held that “a su bstantive crime and a conspiracy to commit that crime are not the ‘same [offense]’ for double jeopardy purposes.” United States v. Felix , 503 U.S. 378, 389 (1992). A de fendant can be tried and convicted for each without violating Double Jeopardy. Id.- 26 - Deandre argues that his previous pros ecution and conviction for the Barnes Pharmacy robbery must bar his later prosecution in th is case for conspiring to commit that robbery. He ack nowledges on appeal that he raises this argument to preserve it for appeal to the Supreme Court. We agree with th e government that Felix requires that this cour t hold that there was no Do uble Jeopardy violation. We conclude that Deandre’ s indictment and convicti on for conspiracy did not violate Double Jeopardy.

V. CUMULATIVE ERROR When analyzing cumulative error, we aggregate all actu al errors and consider whether their cumulative effe ct denied the defendant a fundamentally fair trial. United States v. Rivera , 900 F.2d 1462, 1477 (10t h Cir. 1990) (en banc); see also United States v. Toles , 297 F.3d 959, 972 (10th Cir. 2002). We consider only actual errors, not just the possibility that the district c ourt might have done something differently. Rivera , 900 F.2d at 1470–71. Errors are only those violations “of an establishe d legal standard de fining a particular error,” not just incidents a reviewing cour t considers troubling. Id. at 1471. As its name suggests, there must be at least two e rrors in order to undertake a cumulative error analysis. Id. at 1469.- 27 - Deandre argues that he has proven th ree relevant erro rs: (1) lack of interdependence; (2 ) introduction of the gang-affi liation evidence; and (3) a Double Jeopardy violation. The government argues that Deandre cannot show any errors, let alone cumulative error. We did not find any error regarding the gang-affiliation evidence or the Double Jeopardy claim. Becaus e we concluded that there was a variance, we must include the variance in our consideration of cumulati ve error. But one error is insufficient to even warr ant conducting a cumulative erro r analysis. We therefore hold that there was no cumula tive error in this case.

VI. CONCLUSION We affirm Deandre’s convic tions as to all counts.

ENTERED FOR THE COURT

Gregory A. Phillips Circuit JudgeNo. 13-5072, United States v DeAndre Hopkins McHUGH , Circuit Judge, concurring: I am pleased to join in the majority’s thorough and thoughtful Order and Judgment affirming Deandre’s convictions. I write se parately to explain why I conclude the variance in this case did not prej udice Deandre’s right to a fair trial. As I described in my concurring and dissenting opinion in United States v. [Dejuan] Hill , __ F.3d __, No. 13-5074 (10th Cir. May 22, 2015) (McH ugh, J. concurring and dissenting), the government’s decision to charge and try th e defendants for participating in a global conspiracy for which there was insufficient evidence carried w ith it the risk of prejudicial spillover. But in Deandre’s case, the varian ce did not cause substantial prejudice. The government alleged Deandre participated in three of the seven robberies, including the Tulsa Credit Union robbery, which was the most violent of the seven. 11 As the majority explains, much of the gang evidence admitted was directly relevant to Deandre’s involvement in all three robberies. And even if the global conspiracy theory allowed the government to introduce some inflammatory ev idence that had little relevance to Deandre, the overwhelming evidence of De andre’s guilt with resp ect to the Barnes Pharmacy, Metro Pharmacy, and Tulsa Credit Union robberies makes it unlikely that the admission of this evidence improperly influenced the jury’s verdict. Therefore, I concur in the majority’s conclusion th at the variance did not interfe re with Deandre’s right to a fair trial.

11 The other two robberies were of the Ba rnes Pharmacy and th e Metro Pharmacy.