*

 This order and judgment is not binding precedent except under the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

March 25, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON CLAYCOMB, a/k/a GRR,

Defendant-Appellant.

No. 09-8023

(D.Ct. No. 2:07-CR-00196-CAB-5)

(D. Wyo.)

______________________________

ORDER AND JUDGMENT*

Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant-Appellant Jason Claycomb appeals his convictions on grounds

the district court abused its discretion and violated his due process rights in

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denying his motion for a continuance of his trial. He also claims the government

violated his Fifth Amendment due process rights when it “vouched” for the truth

and veracity of cooperating witness testimony by asking questions regarding its

“golden rule.” We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Factual and Procedural Background

From approximately November 2006 to July 2007, Mr. Claycomb was

incarcerated at the Larimer County Detention Center in Fort Collins, Colorado, on

charges unrelated to the instant case. While housed at that facility, Mr. Claycomb

used the detention center’s telephone on an average of at least two hours a day,

spent over $14,094.77 on telephone calls, and made a total of 3,558 successful

calls. Each time Mr. Claycomb made a telephone call from the detention center

he received a recorded warning stating, “This call may be recorded and it may be

subject to monitoring at any time.” All of Mr. Claycomb’s calls were tracked and

recorded and later transferred to disks. The incriminating telephone recordings

established Mr. Claycomb arranged drug deals while incarcerated at the detention

center by instructing individuals on the sale of methamphetamine and cocaine

transported from Fort Collins to Gillette, Wyoming. 

As a result of Mr. Claycomb’s telephone calls, in January 2007 the

Wyoming Division of Criminal Investigation began an investigation into a drug

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conspiracy involving several individuals selling, buying, and transporting drugs

from Fort Collins to Gillette under Mr. Claycomb’s direction. On September 20,

2007, a superceding indictment issued in which the government charged Mr.

Claycomb and others with one count of conspiring to possess with intent to

distribute and distribute methamphetamine between October 2005 and July 2007,

in violation of 21 U.S.C. §§ 841(a)(1) and 846. On November 26, 2007, the

district court entered a discovery order in conjunction with Federal Rule of

Criminal Procedure 16, including a provision requiring the government to provide

Mr. Claycomb any item the government intended to use in its case-in-chief at

trial. Fed. R. Crim. P. 16(e). Thereafter, on January 17, 2008, a second

superceding indictment followed which retained the count against Mr. Claycomb

and the others, but added additional defendants. After the other defendants

pleaded guilty, a third superceding indictment issued on September 25, 2008,

charging only Mr. Claycomb with conspiring to possess with intent to distribute

and distributing methamphetamine and cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846, as well as two firearm counts not previously included. 

Sometime in December 2007, pursuant to the Rule 16 discovery order, the

government provided to Mr. Claycomb’s counsel what it believed were all of his

telephone recordings made at the detention center. Then, in April 2008, the

government provided Mr. Claycomb and his counsel a spreadsheet listing every

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telephone call he made from the detention center as well as a disk containing only

the telephone recordings the government intended to use at trial. Four months

later, on August 15, 2008, Mr. Claycomb appeared before the district court at a

change of plea hearing, but after learning how the advisory United States

Sentencing Guidelines may apply in his case, including an increase in his base

offense level for his leadership or managerial role in the conspiracy, he requested

additional time to consider his plea, which the district court granted. 

On August 27, 2008, at his next scheduled plea hearing, Mr. Claycomb’s

counsel requested a continuance, explaining Mr. Claycomb had not reviewed the

telephone recordings provided but wanted to listen to all of the calls he made

from the detention center. His counsel explained a continuance was needed

because: (1) Mr. Claycomb had previously attempted to listen, at least one time,

to the disks provided, but because one of the conversations with a friend, since

deceased, upset him, he asked counsel to stop the recordings; (2) the initial plea

hearing regarding his leadership role “concerned” Mr. Claycomb because he had

not listened to the disks; (3) while counsel tried to impress on Mr. Claycomb

three months earlier the seriousness of his situation, Mr. Claycomb only now

understood the ramifications; (4) Mr. Claycomb insisted on listening to all of his

telephone recordings rather than a condensed version of them; (5) it was

important for Mr. Claycomb to listen to all of the telephone recordings as they

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could contain evidence to help prepare a sound defense; and (6) counsel arranged

with jail staff for Mr. Claycomb to listen to the recordings on an MP3 player

provided by counsel, but because of restrictions on use of a private room Mr.

Claycomb could only listen to them a few hours at a time. 

In turn, the government objected to a continuance, explaining Mr.

Claycomb had several months to listen to the recordings of his telephone calls and

that the summary disk of those telephone calls it intended to use at trial would

only take an hour and a half of listening time. The district court found Mr.

Claycomb was not prepared to enter a guilty plea, concluded the hearing, and set

a trial date. 

Two months later, on October 16, 2008, the parties gathered for another

hearing to discuss several pending motions, including a bond hearing related to

Mr. Claycomb’s requested release from the detention facility for the purpose of

listening to the recordings. Mr. Claycomb’s counsel advised the district court that

counsel had reviewed many of the calls he thought were important and those the

government identified as important, and an iPod was provided to Mr. Claycomb to

listen to the disks, but too many telephone calls existed for Mr. Claycomb to

listen to while incarcerated. Counsel then requested Mr. Claycomb be released on

bond to a transitional facility so he could listen to all his recorded telephone calls

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at his defense counsel’s office. 

In making his request, Mr. Claycomb’s counsel provided a letter from a

staffer at the detention center which actually disclosed that while Mr. Claycomb

asked to listen to the telephone recordings on a daily basis, the staffer had seen

Mr. Claycomb only leave his cell twice in one month to listen to the recordings. 

In addition, unrebutted evidence presented by a United States Marshal established

Mr. Claycomb had not listened to his iPod since September 6, 2008, and that

while staff had attempted to wake him several mornings for the purpose of

listening to his iPod, he had refused to get up. As a result, over the prior two

weeks staff had quit attempting to wake him. The district court denied Mr.

Claycomb’s bond request but issued an order instructing detention center staff to: 

(1) give him the opportunity to listen to the telephone recordings through a

playing device furnished by counsel; (2) make the playing device available to him

every day in his jail cell or a private setting at the detention center; and (3) wake

him every morning at 8:00 to listen to the telephone recordings for an eight-hour

period each day. 

Two months later, on December 2, 2008, and just prior to the

commencement of the trial set for that day, Mr. Claycomb’s counsel again

requested additional time to listen to the telephone recordings. According to

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counsel, while he received disks of the recordings, he and Mr. Claycomb did not

discover until the evening before trial that the disk which supposedly contained

all of the calls from November 2006 through February 1, 2007, only contained

three days of recordings, from January 25 to 28, 2007. In turn, the government

admitted the disk it provided to defense counsel in December 2007, which it

believed contained those telephone calls, did not contain all of them. However, it

also explained that in April 2008 – at least seven months prior to trial, it provided

defense counsel a spreadsheet of every telephone call recorded, as well as the disk

containing only those telephone calls it considered part of its case-in-chief and

intended to use at trial. It also noted that it allowed defense counsel access to

every item of evidence in the case, and defense counsel spent a week reviewing

the government’s evidence. 

Mr. Claycomb’s counsel admitted he received the disk with the telephone

calls the government intended to use at trial and did not object to the

government’s use of those recordings. However, counsel again requested more

time to review the other inadvertently omitted telephone recordings which he and

Mr. Claycomb did not realize were missing until the night before trial, explaining,

“[t]here might be something in there that I can use,” and “[m]y client would like

to hear them to see if there’s anything in there I can use in his defense.” In

addition, while Mr. Claycomb’s counsel admitted he possessed the spreadsheet

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identifying every call from November through January, he stated he did not

realize “until last night” that it corresponded to every recorded call. The district

court disagreed, stating: 

Well, I am not going to give you an objection. I think it is your own

fault. I think that you should have compared the logs to the phone

transcripts and also to the audio of it. I would think that would be

the first thing you would do, not the last.

....

If you or Mr. Claycomb haven’t gotten around to hearing them, that’s

nothing I can help.

As to Mr. Claycomb’s counsel’s argument something might exist in the telephone

recordings to use in Mr. Claycomb’s defense, the district court stated, “I’m sorry

.... but you’ve had plenty of time.” Accordingly, it denied Mr. Claycomb’s

request for a continuance and the parties proceeded to trial. 

During the trial, the government called as witnesses five law enforcement

or detention facility personnel and seven individuals involved in the conspiracy

who pleaded guilty. It also introduced only the telephone recordings designated

for its case-in-chief which were provided to Mr. Claycomb’s counsel on a disk in

April 2008. Those recordings were used in conjunction with the testimony of at

least three cooperating witnesses for the purpose of proving Mr. Claycomb’s

guilt. Specifically, Mr. Claycomb’s girlfriend, Mia Brown, identified her plea

agreement and the provision stating her understanding a reduction of her sentence

could occur based on the district court’s determination of her assistance to the

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government, including the government’s evaluation of her truthfulness. She also

testified she spoke with Mr. Claycomb every day while in jail and he instructed

her on the purchase and sale of the drugs as well as directed her to obtain his

9mm machine gun from the location where he stored it before police found it. At

the end of her testimony, she listened to and identified calls involving herself and

others with Mr. Claycomb while he was at the detention center – all of which

corroborated her earlier testimony that he instructed her and others with respect to

multiple drug transactions. She admitted she lied in her initial statements to law

enforcement officers, but when questioned on redirect examination about what the

United States Attorney’s Office termed the “golden rule,” she stated she

understood it was “[t]o always tell the truth.” 

Similarly, other cooperating witnesses involved in the same drug

conspiracy corroborated Ms. Brown’s or other witnesses’ testimony, testifying as

to: (1) Mr. Claycomb’s role in selling drugs transported from Fort Collins to

Gillette; (2) the fact he continued to direct those drug sales from jail through his

girlfriend and others; and/or (3) the quantity of cocaine and methamphetamine

Mr. Claycomb was responsible for selling. Like Ms. Brown, two other witnesses

identified incriminating telephone recordings made between Mr. Claycomb,

themselves, and others while he was incarcerated. In addition to Ms. Brown, the

government also asked three of the six other cooperating witnesses to explain

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their understanding of the “golden rule,” which they said was to tell the truth, and

all of the cooperating witnesses were asked to identify their plea agreements and

the assistance to government provision for a reduction in sentence and all

indicated it required them to tell the truth. One witness also testified he traded a

machine gun to Mr. Claycomb in exchange for methamphetamine. 

Following the evidence presented at trial, a jury found Mr. Claycomb guilty

of all three counts, including conspiring to possess with intent to distribute and

distributing methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1)

and 846; possessing a machine gun in furtherance of a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1)(B)(ii); and possessing a firearm not registered

in the National Firearms Registration and Transfer Record in violation of 26

U.S.C. §§ 5841, 5845(a), and 5861(d). The district court then sentenced Mr.

Claycomb to 360 months imprisonment on the conspiracy count; 360 months

imprisonment on the machine gun count, to run consecutively to the sentences for

the other counts; and 120 months imprisonment on the gun registration count, to

run concurrently with the other sentences. 

II. Discussion

A. Denial of Motion for Continuance of Trial

Mr. Claycomb now appeals his convictions on grounds the district court

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abused its discretion and violated his due process rights by denying his motion for

a continuance of the trial. In support of his claim, Mr. Claycomb contends the

excluded telephone recordings may contain exculpatory evidence, including

possible instances where he “opposed numerous of the drug deals proposed by the

other participants ....” By not listening to those tape recordings, Mr. Claycomb

claims he was prejudiced because he had insufficient time to prepare a defense,

prepare for his own potential testimony, or investigate and prepare a challenge to

those telephone recordings the government used at trial. While he admits he was

a party to the recordings in question, Mr. Claycomb suggests the tape recordings

of his telephone calls were made too far in the past for him to recall their

contents. Additionally, he claims the district court acted unreasonably and

arbitrarily in denying a continuance because neither he nor his counsel could have

“gotten around to hearing” all the telephone calls because the government never

provided them. 

In response, the government argues: (1) neither Mr. Claycomb nor his

counsel were diligent in reviewing the telephone recordings, and, had they been

diligent, it would have hastened their eve-of-trial discovery that some of the

recorded telephone calls were missing; (2) it is unlikely Mr. Claycomb would

have listened to the recordings in the event of yet another continuance, given his

history of not listening to them; (3) Mr. Claycomb’s request for a continuance of

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unspecified time on the day of the trial would have caused the government, its

witnesses who traveled from Colorado, the jurors, and the court great

inconvenience; and (4) Mr. Claycomb failed to demonstrate a need for a

continuance or that he suffered any harm by denial of his request because he

insufficiently asserted what he expects to discover in those recordings.

In addressing the issues presented on appeal, we first turn to our standard

of review and the principles underlying motions for continuance. We review a

district court’s denial of a motion for continuance for abuse of discretion,

“assigning error only if the district court’s decision was arbitrary or unreasonable

and materially prejudiced the defendant.” United States v. Apperson, 441 F.3d

1162, 1204 (10th Cir. 2006) (internal quotation marks, citation, and alteration

omitted). We have said that whether a district court’s denial of a motion for

continuance is arbitrary or unreasonable depends, in part, on: 

[1] the diligence of the party requesting the continuance; [2] the

likelihood that the continuance, if granted, would accomplish the

purpose underlying the party’s expressed need for the continuance;

[3] the inconvenience to the opposing party, its witnesses, and the

court resulting from the continuance; [and] [4] the need asserted for

the continuance and the harm that [the] appellant might suffer as a

result of the district court’s denial of the continuance.

United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (internal quotation

marks and citation omitted). 

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As the government contends, neither Mr. Claycomb nor his counsel acted

diligently in reviewing the disk of telephone recordings in their possession since

December 2007 – a whole year prior to commencement of the trial. During that

time, the district court allowed at least two prior continuances for them to review

the recordings provided, and the government furnished a spreadsheet showing all

of Mr. Claycomb’s telephone calls. While Mr. Claycomb claims neither he nor

his counsel could have “gotten around to hearing” all the telephone calls because

the government never provided them, they would have readily discovered, well

before trial, that some of the recorded telephone calls were inadvertently missing

had they only listened to the disks provided and/or compared those calls with the

spreadsheet. Instead, the record is replete with evidence Mr. Claycomb simply

failed to bother to listen to the tapes, despite the opportunities afforded him. 

This, and the fact he and his counsel did not discover missing telephone calls

until the eve of trial, demonstrates a lack of diligence sufficient to support the

district court’s denial of another continuance.

Next, we consider the likelihood a continuance, if granted, would

accomplish the purpose underlying the party’s expressed need for the

continuance. In this case, we agree with the government that it is highly unlikely

Mr. Claycomb would have listened to the recordings in the event of yet another

continuance, given his history of not availing himself of the many prior

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opportunities to listen to them. While his counsel may have listened to them had

a continuance been granted, that alone is insufficient, when compared with the

other circumstances presented in this case, to establish an abuse of discretion by

the district court in denying the motion for continuance. 

Next, Mr. Claycomb did not move for a continuance until the day of the

trial, and, in doing so, he did not specify the amount of time needed for such a

continuance. The government argues that granting a continuance on the morning

of the trial would have caused the court, jury, government, and its cooperating

witnesses, who apparently traveled from Colorado, great inconvenience. As we

have stated before, “any continuance granted practically on the eve of trial

inevitably will disrupt the schedules of the court, the opposing party, and the

witnesses who have been subpoenaed or who have voluntarily arranged their

schedules to attend the trial,” as well as jurors. Id. We have also held that where

the motion for continuance does not specify the amount of time needed to prepare

adequately for trial, “the resulting uncertainty” is an additional inconvenience to

the government and its witnesses. Id. at 1475-76. This case is no exception. 

Under the circumstances presented, it is apparent a continuance would have

caused inconvenience to those involved in the trial.

Finally, with regard to the fourth factor, Mr. Claycomb must show “the

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need asserted for the continuance and the harm that [he] might suffer as a result

of the district court’s denial of the continuance.” Id. at 1475. Here, as the

government contends, Mr. Claycomb fails to demonstrate a need for a continuance

or any harm caused by its denial because he has not asserted what he expects to

discover in those recordings. Instead, on appeal, Mr. Claycomb merely contends

the telephone recordings may contain exculpatory evidence, including possible

instances where he “opposed numerous of the drug deals proposed by the other

participants ....” However, even if the missing recordings revealed his opposition

to some drug deals, such conduct would not exculpate him from responsibility for

those drug deals the evidence in the record overwhelmingly establishes he

directed and for which he was convicted and sentenced. Given such

overwhelming evidence, Mr. Claycomb has not explained how a continuance

would have helped him prepare a defense, prepare for his own potential

testimony, or investigate and prepare a challenge to the telephone recordings the

government did use at trial, which he had full access to seven months in advance. 

We also note that at the time of the trial, when the district court considered the

motion, the only reasons Mr. Claycomb’s counsel could muster for a continuance

consisted of assertions that “[t]here might be something in there that I can use,”

and “[m]y client would like to hear them to see if there’s anything in there I can

use in his defense.” This is woefully insufficient to show the need asserted for a

continuance and the harm one might suffer as a result of the district court’s denial

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of a continuance.

While we do not condone the government’s inadvertent failure to provide

all of the telephone recordings to Mr. Claycomb, he has failed to show any

material prejudice caused by the error or the denial of his motion for continuance. 

For all of the reasons stated, we conclude the district court did not act arbitrarily

or unreasonably or otherwise abuse its discretion in denying the motion for

continuance.

B. Golden Rule Violation

In his appeal, Mr. Claycomb also argues the government violated his Fifth

Amendment right to due process when it “vouched for four of its critical

witnesses by obtaining testimony that they were adhering to ‘the golden rule’” to

tell the truth. In support, Mr. Claycomb points out the government introduced

into evidence each of their plea agreements containing provisions their

cooperation would result in lesser sentences if the government determined they

told the “truth.” While he concedes admitting plea agreements is permissible, he

contends the government’s questions to witnesses about the “golden rule”

implicitly suggested that it found their testimony truthful, causing impermissible

prosecutorial vouching as to the truthfulness of those witnesses. According to

Mr. Claycomb, such witness testimony on the “golden rule” misled the jury and

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prejudiced him because the case against him depended on the credibility of those

witnesses. Because he did not object to the government’s questioning of the

witnesses on the “golden rule,” he concedes the standard of review is for plain

error but summarily contends he meets this standard because plain error occurred

which prejudicially affected his substantial rights depriving him of a fair trial and

seriously affected the fairness, integrity, and public reputation of his judicial

proceeding.

As Mr. Claycomb acknowledges, he did not object to the admission of the

government’s questions regarding the “golden rule,” so we review the issue of

such admission for plain error. See United States v. Harlow, 444 F.3d 1255, 1261

(10th Cir. 2006). To establish plain error, Mr. Claycomb must show: (1) an error;

(2) that is plain; (3) that affects substantial rights so the outcome of the trial

would have been different without the error; and (4) that the error seriously

affected the fairness, integrity, or public reputation of the judicial proceeding. 

See id. All of these requirements must be established before a defendant can meet

his burden of establishing plain error.

Having set out our standard of review, we turn to the legal principles

involved in considering Mr. Claycomb’s vouching argument. Vouching errors are

viewed “in light of the context of the entire proceeding, including the strength of

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any curative instructions and the closeness of the case.” Id. (citations omitted).

We have said it is permissible for a prosecutor to introduce a witness’s plea

agreement including a truthfulness provision and to discuss that provision to make

sure the witness is aware of the consequences of failing to tell the truth and for

the purpose of heading off any claim the witness’s testimony is suspect because

of the plea agreement. See id. at 1262. “Use of the ‘truthfulness’ portions of plea

agreements becomes impermissible vouching only when the prosecutors explicitly

or implicitly indicate that they can monitor and accurately verify the truthfulness

of the witness’ testimony.” Id. (internal quotation marks, citation, and alteration

omitted). 

In this case, it is clear the government only asked the witnesses to identify

their plea agreements and the assistance to government or “truthfulness”

provisions concerning a reduced sentence and to explain if they knew what the

“golden rule” was. A review of their testimony does not in any way indicate the

government vouched for the credibility of those witnesses or the veracity of their

testimony – either explicitly or implicitly. Thus, we discern no error.

However, even if the government’s questions on the “golden rule” could be

interpreted as vouching as to their credibility and constitute plain error, it is clear

Mr. Claycomb has not demonstrated the error affected his substantial rights. 

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1

 In addition, the government contends Mr. Claycomb’s statements to a law

enforcement detective implicated him in the distribution of drugs and his

possession of the 9mm machine gun, but it does not indicate where in the record

such statements were introduced into evidence. Our review of the record

establishes the detective, who testified at trial on the recording of Mr. Claycomb’s

telephone calls at the detention center, did not testify as to any statement made to

him by Mr. Claycomb. Therefore, we will not consider any such statements on

appeal. It also contends three cooperating witnesses were not asked about the

“golden rule,” so that Mr. Claycomb’s “golden rule” argument should not pertain

to their testimony on their working at his direction in the conspiracy or

purchasing methamphetamine and/or cocaine from him. This is correct. Our

review of the record establishes each of the cooperating witnesses testified

regarding the government assistance provision of their plea agreements, and all

indicated it required them to state the truth, but only four specifically testified

regarding the “golden rule.” However, even if we did not consider any of the

witnesses’ testimony, it makes no difference in the result, given the overwhelming

inculpatory evidence relating to the tape recordings themselves. 

-19-

Instead, a plethora of telephone recordings involving Mr. Claycomb, which he

admits were provided to him seven months before trial and introduced into

evidence, clearly established his managerial role in the drug conspiracy at issue

and the location and his possession of the 9mm machine gun.1

 Thus, even if plain

error had occurred concerning the government’s vouching of witness testimony,

Mr. Claycomb’s own telephone recordings overwhelmingly support his

convictions. Thus, he has not shown, but for the alleged error, the outcome of the

trial would have been different. Having made this determination, we need not

address the fourth requirement of our plain error review, other than to note Mr.

Claycomb has also failed to establish the alleged error, if any, seriously affected

the fairness, integrity, or public reputation of his judicial proceeding. 

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III. Conclusion

For the aforementioned reasons, we AFFIRM Mr. Claycomb’s convictions. 

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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