## F I L E D United States Court of Appeals Tenth Circuit 

### June 30, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. KENNETH WAYNE STIGER,

Defendant - Appellant. No. 03-5043

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D. Ct. No. 00-CR-126-C)

Before TACHA , Chief Circuit Judge, EBEL and HARTZ , Circuit Judges.

Susan G. James, Law Office of Susan G. James & Asso ciates, Montgomery, AL, appearing for Appellant. Kevin C. Danielson, Assistant United States Attorne y (David E. O'Meilia, United States Attorney, with him on the brief), Office of the United States Attorney, Tulsa, OK, appearing for Appellee.

TACHA , Chief Circuit Judge.
This is an opinion on a petition for rehearing, whi ch raised several issues for our reconsideration. We granted the petition o nly with respect to alleged- 2 -

sentencing errors under United States v. Booker , 543 U.S. —, 125 S. Ct. 738 (2005), which was decided after our initial opinion . We therefore withdraw our earlier opinion, United States v. Stiger , 371 F.3d 732 (10th Cir. 2004) (“ Stiger
I ”), and substitute this opinion. A jury found Defendant-Appellant Kenneth Wayne Stiger guilty of numerous counts of conspiring to possess and distri bute narcotics. On appeal, he alleges seven grounds for us to find reversible err or: (1) use of defective verdict forms; (2) a violation of Apprendi v. New Jersey , 530 U.S. 466 (2000), as well as Blakely v. Washington , 542 U.S. —, 124 S. Ct. 2531 (2004), and Booker ; (3) insufficiency of the evidence; (4) improper denial of his mistrial motion; (5) refusal to try him separately from his codefendants ; (6) admission of summary testimony and exhibits; and (7) a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We take jurisdiction pursuant to 28 U .S.C. § 1291, AFFIRM in part, REVERSE in part, and REMAND.
I. BACKGROUND This appeal represents the culmination of the government’s investigation and prosecution of an extensive drug conspiracy. A s the government proved at trial, the central player in the conspiracy was Dar rell Bellamy of Phoenix, Arizona. From Phoenix, Mr. Bellamy coordinated shi pments of powder cocaine, crack cocaine, and marijuana to various cities, inc luding Tulsa, Oklahoma;1 Although not entirely clear, Mr. Stiger appears t o concede these facts in

his appellate brief. - 3 - Wichita, Kansas; and Detroit, Michigan. At trial, several witnesses testified to Mr. Stiger ’s involvement in the conspiracy. Specifically, these witnesses testifie d to seeing Mr. Stiger prepare marijuana for shipping, arrange for and assist in the transportation of marijuana and cocaine, and transfer and instruct others to tr ansfer large amounts of money to Mr. Bellamy. In addition to these general activities, Jennifer N atale testified that Mr. Stiger assisted three others in torturing her. Spe cifically, she testified that, in response to a dispute over the proceeds from a drug sale, Mr. Bellamy, two men identified only as Marvin and Dash, and another ide ntified only as “Crazy Will,” forced her to remove her clothes below the waist an d burned her repeatedly with a hot iron and with boiling grease. They also threat ened to pour grease on her lap and face and to take her to the desert and shoot he r. While the others tortured Ms. Natale, Mr. Stiger “held a gun at [her] head an d he pushed it in [her] nose and he told [her] he was going to make it hurt.” 1 A federal grand jury indicted Mr. Stiger for conspi ring to possess and distribute cocaine, crack cocaine, and marijuana in violation of 21 U.S.C. § 846; conspiring to launder money in violation of 18 U.S. C. § 1956(h); and one count of- 4 -

forfeiture pursuant to 18 U.S.C. §§ 982 and 1956(h) . After a twenty-three-day trial involving over fifty witnesses, a jury convic ted Mr. Stiger on all counts. The District Court sentenced Mr. Stiger to life in prison to be followed by ten years’ supervised release and imposed $25,200 in fines andassessments. Mr. Stiger filed timely notice of appeal, raising seven issues . We address each below.
II. DISCUSSION A. Verdict Forms
1. Standard of Review Mr. Stiger first argues that the verdict forms usedat trial were defective. We review verdict forms under the same “abuse of di scretion standard we apply to jury instructions.” United States v. Jackson , 213 F.3d 1269, 1285 (10th Cir.), rev’d on other grounds , 531 U.S. 1033 (2000). “A district court does notabuse its discretion so long as the charge as a whole adequately states the law.” United
States v. Starnes , 109 F.3d 648, 651 (10th Cir. 1997) (internal quot ations omitted). To make this latter determination, we re view de novo whether the charge as a whole “accurately informed the jury of the governing law.” United States v. Cerrato-Reyes , 176 F.3d 1253, 1262 (10th Cir. 1999). Even if we conclude that the District Court erred, we must also determine whether the error is “harmless error.” Fed. R. Cri m. P. 52(a). The government bears the burden to show that a nonconstitutional e rror is harmless by a- 5 -

preponderance of the evidence. United States v. Wittgenstein , 163 F.3d 1164, 1169 (10th Cir. 1998). An error “is harmless unles s it had a ‘substantial influence’ on the outcome or leaves one in ‘grave d oubt’ as to whether it had such effect.” United States v. Cestnik , 36 F.3d 904, 910 (10th Cir. 1994).
2. Merits Mr. Stiger contends that the verdict forms are defe ctive because they did not require the jury to find him guilty of particip ating in the conspiracy before it decided his guilt as to the objects of the conspira cy. Because the forms used by the District Court only required a finding as to th e objects of the conspiracy, Mr. Stiger argues, “[i]n the case at bar we do not even have a conviction on the conspiracy count.” He therefore urges that the fun damental nature of this error mandates a new trial. In response, the government claims that the verdictforms sufficiently informed the jury of the need to find Mr. Stiger gu ilty of the overarching conspiracy not just its objects. Noting that the j ury “was given detailed instructions on the elements of the conspiracy char ge and what it had to find in order to determine whether or not each defendant wa s guilty of conspiracy,” the government contends that we should interpret the ve rdict form in light of the instructions given. Understood in this light, the government argues, the verdict forms accurately informed the jury of the law.2 The pertinent forms read:
VERDICT FORM -I KENNETH WAYNE STIGER

COUNT I
Count 1 -charges a drug conspiracy in violation of Title 2 1, United States Codes[s] [sic], Section 846. We, the Jury, i n the above styled and numbered case do upon our oaths, unanimo usly find the defendant Kenneth Wayne Stiger as to Count 1, as follows: Object 1 - Knowingly and intentionally distribute and posse ss with intent to distribute a mixture or substance co ntaining a detectable amount of cocaine in violation of 21 U.S .C. § 841(a)(1): ______ Not Guilty ___X__Guilty Object 2 - Knowingly and intentionally distribute and possess with intent to distribute a mixture or substance co ntaining a detectable amount of marijuana in violation of 21 U .S.C. § 841(a)(1): ______ Not Guilty ___X__Guilty Object 3 - Knowingly and intentionally distribute and posse ss with intent to distribute a mixture or substance co ntaining a detectable amount of cocaine base (crack cocaine) i n violation of 21 U.S.C. § 84l(a)(l): ______ Not Guilty ___X__Guilty (continued...)

- 6 - Despite the government’s protestations, we agree wi th Mr. Stiger that the verdict forms never required the jury specifically to find him guilty of the overarching conspiracy. 2 Like Mr. Stiger, we read the verdict forms to req uire a2 (...continued) VERDICT FORM -6 COUNT 1- DRUG CONSPIRACY QUANTITY OF CONTROLLED SUBSTANCE As previously instructed, only if you find one or m ore of the defendants now on trial “guilty” of Count 1, will y ou proceed to make a determination regarding the amount of contro lled substance attributed to each object of the conspiracy charged in the Second Superseding Indictment. If , on the other hand, you find all of the defendants now on trial “not guilty” of Count 1, th en you need not consider Verdict Form- 6. - 7 - finding only as to objects of the conspiracy. Although we harbor grave doubts about the proprietyof the use of these verdict forms, we need not decide whether their use constitutes error or whether the jury instructions cured any possible error because, even if we found error, the use of the verdict forms did not substantially infl uence the outcome of the trial.
See United States v. Magleby , 241 F.3d 1306, 1318 (10th Cir. 2001) (“Notwithstanding our doubts regarding the relevanc e of this testimony, we need not decide whether the district court abused its di scretion in admitting it because we find that it was harmless error.”). The government carries its burden to establish harm lessness by pointing to the testimony of at least fourteen witnesses who of fered testimony against Mr. Stiger. Several witnesses testified at length to h is involvement in packaging and coordinating shipments of drugs for the conspiracy and in sending large amounts3 To be clear, we do not approve of the District Court’s use of the verdict

forms at issue. The District Court should have emp loyed forms that required a finding as to guilt for the conspiracy. Rather, we hold only that any resulting error did not affect the outcome of the trial as re quired by Rule 52(a) of the Federal Rules of Criminal Procedure. - 8 - of money to Mr. Bellamy. We are especially persuad ed by Ms. Natale’s extensive and gruesome testimony regarding Mr. Stiger’s invol vement in her torture. As she made clear in her testimony, this torture was d irectly related to a dispute about the proceeds from a drug sale for the conspir acy. In light of this testimony, we find that the alleged verdict-form error did notsubstantially impact the outcome of the trial. 3 B. Sentencing
1. Standard of Review Mr. Stiger next argues that the District Court viol ated his Sixth Amendment rights by not requiring the jury to make a specific finding as to the amount of drugs for which he was personally responsible. Bec ause Mr. Stiger made this constitutional argument at sentencing, we review the issue de novo. United States v. Lampley , 127 F.3d 1231, 1237 (10th Cir. 1997).
2. Merits Below, the Government, in accordance with 21 U.S.C. § 851(a), notified Mr. Stiger that it would seek the application of 21 U.S.C. § 841(b)(1)(A). “Section 841(b)(1)(A) requires imposition of a ‘man datory term of life4 Had this occurred, Mr. Stiger appears to contend, h e would not have been

subject to the ten-year or life mandatory minimum b ecause § 841(b)(1)(B) provides for a mandatory minimum of only five years ’ imprisonment for trafficking in lesser quantities of controlled subs tances and only ten years if there is a prior felony drug conviction. - 9 - imprisonment without release’ if (1) a defendant is convicted of violating § 841(a), (2) that conviction involved a certain re quisite amount of drugs, and (3) the crime was committed ‘after two or more prior co nvictions for a felony drug offense have become final.’” United States v. Harris , 369 F.3d 1157, 1167 (10th Cir. 2004). In this case, the jury found that the conspiracy as a whole violated 21 U.S.C. § 841(a)(1) by trafficking 5 or more kilograms of a substance containing cocaine, 1000 or more kilograms of a substance cont aining marijuana, and 50 grams of a substance containing crack cocaine. In addition, the amounts and types of drugs that the jury found attributable to the conspiracy as a whole are sufficient to satisfy the second prong of the § 841 (b)(1)(A) mandatory life sentence requirement. At sentencing, Mr. Stiger objected to the jury’s fi nding as to drug type and amount for the entire conspiracy, arguing that Apprendi and now, Booker , require the jury also to make specific findings as to the amount and type of drug attributable to him individually. 4 The District Court concluded that Apprendi does not require the jury in a conspiracy case to m ake individual findings as to each member of the conspiracy, determined Mr. Stige r was integral to the- 10 -

conspiracy and could be sentenced as though he were responsible for the full drug types and quantities, found that Mr. Stiger ha d two previous felony drug convictions, and therefore sentenced him to life imprisonment. See 21 U.S.C. § 841(b)(1)(A). On appeal, Mr. Stiger raises two objections to the applicationof § 841(b)(1)(A). First, Mr. Stiger argues that Apprendi and Booker require the jury, rather than the judge, to determine whether he had two pri or felony drug convictions. In essence, he asserts that Bookeroverrules Almendarez-Torres v. United States , 523 U.S. 224 (1998), which holds that the fact of a prior conviction maybe found by a sentencing judge. We have previously dismissed this argument. United States v. Gonzalez-Huerta , 403 F.3d 727, 731 n.1 (10th Cir. 2005) (en banc); United States v. Moore , 401 F.3d 1220, 1223–24 (10th Cir. 2005). Thus, the fact that the District Court found that Mr. Stiger had two prior felony drug convictions does not render his sentence under § 841(b)(1)(A) c onstitutionally infirm. The second issue Mr. Stiger raises—whether a jury, after Apprendi and Booker , must determine the amount and type of drug attrib utable to individual coconspirators rather than simply attributable to the entire conspiracy—is one of first impression before this Court. Prior to Booker , however, at least five other circuits addressed it; each held that Apprendi only requires the jury to make a finding, beyond a reasonable doubt, as to the amoun t of drugs for which the- 11 -

entire conspiracy is liable. See United States v. Phillips , 349 F.3d 138, 141–43 (3d Cir. 2003), vacated on other grounds , Barbour v. United States , 125 S. Ct. 992 (2005); United States v. Knight , 342 F.3d 697, 709–12 (7th Cir. 2003); United States v. Allen , 65 Fed. Appx. 476, 480–81 (4th Cir. 2003) (Table) ; United States v. Turner , 319 F.3d 716, 722–23 (5th Cir. 2003); Derman v. United
States , 298 F.3d 34, 42–43 (1st Cir. 2002). The reasoning of these courts is simple. First, Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be sub mitted to a jury, and proved beyond a reasonable doubt.” Apprendi , 530 U.S. at 490. Second, in the conspiracy context, a finding of drug amounts for t he conspiracy as a whole sets the maximum sentence that each coconspirator could be given. Derman , 298 F.3d at 42 (discussing Edwards v. United States , 523 U.S. 511 (1998)). Because the subsequent attribution of drug amounts to indiv idual coconspirators cannot increase their maximum sentence, “the judge lawfull y may determine the drug quantity attributable to that defendant and sentenc e him accordingly (so long as the sentence falls within the statutory maximum mad e applicable by the jury's conspiracy-wide drug quantity determination).” Id. at 43. We agree with the reasoning of our sister circuits that Apprendi requires the jury only to set the “maximum sentence ([i.e., the] ceiling)” under which each- 12 -

coconspirator’s sentence must fall. See Knight , 342 F.3d at 711. The judge, however, may determine the “floor” by finding the p recise drug quantity attributable to each coconspirator. See id. The jury is not required to make individualized findings as to each coconspirator because “[t]he sentencing judge’s findings do not, because they cannot, have the effect of increasing an individual defendant’s exposure beyond the statutory maximum justified by the jury’s guilty verdict.” Id

. We also conclude that Bookerdoes not call this practice into question. The primary innovation that the Court introduced in Booker was to clarify what the term “statutory maximum” means for Apprendi purposes. “Our precedents . . . make clear that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Booker , 125 S.Ct. at 749. Thus, under Booker , the “statutory maximum” is the sentence prescribe d by any applicable mandatory sentencing regime, including the United S tates Code, when that sentence is calculated solely upon jury-found facts , admitted facts, or the fact of prior convictions. See id. at 756. In addition, Booker does not alter the wellestablished rule that a finding of drug type and quantity for the conspir acy as a whole sets the maximum sentence that each coconspir ator can constitutionally be given. See Derman , 298 F.3d at 42; see also 21 U.S.C. § 846 (“Any person who- 13 -

attempts or conspires to commit any offense definedin this subchapter shall be subject to the same penalties as those prescribed for the offense.”). Therefore, the practice outlined above is entirely consistent with Apprendiand Booker because the jury sets the applicable “statutory max imum” by determining the type and quantity of drugs attributed to the conspiracy as a whole while the judge’s findings have the effect only of potentially decrea sing an individual defendant’s
sentence. Our analysis of the constitutionality of Mr. Stiger ’s sentence might be different if the District Court had relied upon jud ge-found facts and the U.S. Sentencing Guidelines, instead of § 841(b)(1)(A), t o sentence Mr. Stiger to life imprisonment. Here, the record is not clear whethe r the District Court sentenced under the Guidelines, and thus relied upon judge-fo und facts in the context of a mandatory sentencing regime, or § 841(b)(1)(A). See R. Vol. XXXVIII at 26 (sentencing Mr. Stiger “under the law and the guide lines”). Nonetheless, even if we assume the District Court erroneously found fact s and mandatorily applied the Guidelines, see Gonzalez-Huerta , 403 F.3d at 731–32, such an error would be rendered harmless beyond a reasonable doubt by the presence of the mandatory sentence outlined in § 841(b)(1)(A). See Fed. R. Crim. P. 52(a); Chapman v. California , 386 U.S. 18, 24 (1967). As such, we affirm the District Court’s
sentence.- 14 -

C. Sufficiency of the Evidence
1. Standard of Review Following the presentation of the government’s case , Mr. Stiger moved for a judgment of acquittal pursuant to Fed. R. Crim. P . 29, alleging insufficient evidence. “We review the sufficiency of the evidence de novo.” United States v. Overholt , 307 F.3d 1231, 1249 (10th Cir. 2002). In so doin g, “we ask only whether taking the evidence—both direct and circums tantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find the defend ant guilty beyond a reasonable doubt.” United States v. McKissick , 204 F.3d 1282, 1289 (10th Cir. 2000) (internal quotations omitted). “We rely on t he jury, as the fact finder, to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented.” United States v. Radcliff , 331 F.3d 1153, 1157 (10th Cir. 2003) (internal quotations omitted).
2. Merits Mr. Stiger contends that the District Court erred i n denying that motion because the government introduced insufficient evid ence to prove that he was a member of the alleged drug conspiracy. Although co nceding that the drug conspiracy existed, he argues that the government f ailed to prove that he “had a specific intent to join the Darrell Bellamy conspir acy.” To this end, he asserts- 15 -

that the government failed to introduce evidence th at he was a member of the Bellamy conspiracy and that, at most, it only “prov ed that [he] was involved in drug distribution and that he and [Mr.] Bellamy hadoverlapping drug involvement.” Inexplicably—and seemingly in confli ct with his recitation of facts—he also concludes that he “was never involvedwith the Jennifer Natale torture episode.” The record wholly belies Mr. Stiger’s assertions th at insufficient evidence exists to prove his membership in the Bellamy conspiracy. See infra pp. 2-3. As the government illustrates in its brief, and we con firmed upon our independent review of the record, substantial evidence was pres ented showing that Mr. Stiger “knew the objective of the conspiracy was to profitfrom the distribution of illegal drugs, that he voluntarily participated, . . . thathe acted to further the objectives of the conspiracy,” and that he “took essential and integral steps to help the organization profit from the sale of illegal drugs. ” We therefore affirm the District Court’s decision to deny Mr. Stiger’s moti on for judgment of acquittal. D. Mistrial
1. Standard of Review Mr. Stiger moved for a mistrial below. In determin ing whether to grant a mistrial, a district judge must first determine whe ther an error has occurred and, if so, whether that error impaired the “defendant’s ri ght to a fair and impartial trial.”- 16 -

United States v. Meridyth , 364 F.3d 1181, 1183 (10th Cir. 2004). “We reviewa district court’s refusal to grant a mistrial for abuse of discretion.” Id. “In reviewing a court’s determination for abuse of disc retion, we will not disturb the determination absent a distinct showing it was base d on a clearly erroneous finding of fact or an erroneous conclusion of law o r manifests a clear error of judgment.” United States v. Mitchell , 113 F.3d 1528, 1531 (10th Cir. 1997).
2. Merits Well into the trial, Mr. Stiger’s counsel moved fora mistrial based on the fact that attorney Robert Burton visited with him o n several occasions about representing him in this case. The visits were unf ruitful for Mr. Burton, as the District Court ultimately appointed another attorne y to represent Mr. Stiger. The District Court, however, appointed Mr. Burton and h is law partner to represent Richard Taylor, one of Mr. Stiger’s codefendant’s. Mr. Taylor entered a guilty plea prior to Mr. Stiger’s arraignment and became awitness for the government at Mr. Stiger’s trial. Mr. Burton continued to repres ent Mr. Taylor throughout the course of this testimony. Mr. Stiger’s trial counsel claims that he was not i nitially aware of Mr. Burton’s conversations with Mr. Stiger. Upon learn ing of these conversations, however, trial counsel moved for a mistrial based upon a conflict of interest. Trial counsel stated that Mr. Burton “visited [his] client three times before th[e]5 On appeal, the government has not argued that Mr. Stiger’s claim is

essentially an untimely motion to disqualify, which we would review for plain error. Thus, we assume for purposes of this appeal that Mr. Stiger timely raised this issue in the context of a mistrial motion duri ng trial. - 17 - trial started” and that the two spoke “several time s about the case,” although he could not say with certainty whether those conversations would prejudice his client. Counsel sought an evidentiary hearing to d etermine whether an attorneyclient relationship existed between Messrs. Stiger and Barton. The District Court denied the mistrial motion without conducting an ev identiary hearing. On appeal, Mr. Stiger argues that the District Court should have conducted this evidentiary hearing before dismissing his conf lict-of-interest claim. He asserts that the summary dismissal of his mistrial request based on the asserted conflict without hearing or further inquiry violate d his rights to due process, confrontation of witnesses, and conflict free couns el. As such, Mr. Stiger asks us to reverse his conviction. In response, the government asserts that Mr. Burtonnever represented Mr. Stiger and that a new trial would gain Mr. Stiger n othing because his remedy would be a new trial in which co-defendant Taylor would again testify. 5
Two sources inform whether a district court should disqualify an attorney. “First, attorneys are bound by the local rules of t he court in which they appear. . . . Second, because motions to disqualify counsel in federal proceedings are6 See N.D. Okla. R. 83.2 (“Attorneys practicing in this court are expected to

conduct themselves in accordance with the Oklahoma Rules of Professional Conduct, as adopted by the Oklahoma Supreme Court, as the standard of conduct of all members of the Oklahoma Bar Association.”); see also N.D. Okla. R. 83.4 (oath requiring an attorney to “solemnly swear” to “be bound by the Oklahoma Rules of Professional Conduct and [to] conduct [him self] in compliance therewith at all times.”).

7 This rule reads: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substanti ally related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultatio n. (b) A lawyer shall not knowingly represent a personin the same or a substantially related matter in which a firm with which the lawye r formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter ; unless the former client consents after consultation. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (continued...) - 18 - substantive motions affecting the rights of the parties, they are decided by applying standards developed under federal law.” Cole v. Ruidoso Mun. Schools , 43 F.3d 1373, 1383 (10th Cir. 1994). The United States District Court for the Northern D istrict of Oklahoma has adopted the Oklahoma Rules of Professional Conduct. 6 Here, Oklahoma Rule of Professional Conduct Rule 1.9 provides the relevant rule. 7Oklahoma Rule 1.97 (...continued)

(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the infor mation has been generally known; or (2) reveal information relating to the representati on except as Rule 1.6 or Rule 3.3 would permit or require with respec t to a client.

8 Although we have subsequently modified Smith as it applies to imputing a conflict to an entire firm, see SLC Ltd. v. Bradford Group West, Inc. , 999 F.2d 464, 467-68 (10th Cir. 1993), we have not retreatedfrom its holding as to (continued...) - 19 - tracks exactly the text of Rule 1.9 of the ABA Mode l Rules of Professional Conduct, which “we believe reflect[s] the national standard to be used in ruling on disqualification motions.” Cole , 43 F.3d at 1383. Under Rule 1.9, a party seeking to disqualify oppos ing counsel must establish that “(1) an actual attorney-client relationship existe d between the moving party and the opposing counsel; (2) the pres ent litigation involves a matter that is ‘substantially related’ to the subje ct of the movant’s prior representation; and (3) the interests of the opposi ng counsel’s present client are materially adverse to the movant.” Cole , 43 F.3d at 1383 (citing ABA Model Rule 1.9(a) & (c)). If the movant establishes the first two prongs, an irrebuttable “presumption arises that a client has indeed reveal ed facts to the attorney that require his disqualification.” Smith v. Whatcott , 757 F.2d 1098, 1100 (10th Cir. 1985). 88 (...continued)

individual lawyers. - 20 - To show that an attorney-client relationship existe d, Mr. Stiger need not show that “the parties . . . executed a formal contract” or that he paid fees. Cole , 43 F.3d at 1384. Mr. Stiger need only “show that ( 1) [he] submitted confidential information to a lawyer and (2) [he] did so with th e reasonable belief that the lawyer was acting as [his] attorney.” Id. In Cole , we cited approvingly Westinghouse Electric Corp. v. Kerr-McGee Corp. , 580 F.2d 1311, 1319 (7th Cir. 1978), which held that an “implied professional rel ation” can exist in the context of the “preliminary consultation by a prospective c lient with a view to retention of the lawyer,” even though “actual employment does not result.” Id . In addition, “the party moving for disqualification need not rev eal the substance of its communication to the lawyer” and “[u]sually, a show ing of the circumstances and subject of the consultation will be enough to demon strate whether the information was confidential.” Cole , 43 F.3d at 1384 n.8. In applying the second prong—the “ substantial relation” test—we look to whether “the factual contexts of the two representations are similar or related.” Smith , 757 F.2d at 1100 (quotation omitted). “The under lying question is whether the lawyer was so involved in the matter that the s ubsequent representation can be justly regarded as a changing of sides in the matte r in question.” Model Rules of- 21 -

Prof’l Conduct R. 1.9 cmt. Here, Mr. Stiger made a non-frivolous allegation be fore the District Court that Mr. Barton and he had an attorney-client relat ionship in a substantially related matter. We find that the District Court ab used its discretion by failing to investigate this allegation further through an evid entiary hearing. Because we lack essential factual predicates to conduct a disq ualification analysis, we cannot pass on the merits of Mr. Stiger’s claim on appeal. As such, we remand this issue to the District Court with instructions to hold an evidentiary hearing in accord with this opinion. If, following this hearing, the District Court concludes that an attorney-client relationship existed between Messrs . Burton and Stiger, it should then determine whether the representation affected Mr. Stiger’s “right to a fair and impartial trial.” Meridyth , 364 F.3d at 1183.
E. Severance
1. Standard of Review Mr. Stiger next argues that the District Court erre d in refusing to sever his trial from those of his alleged coconspirators because the government sought to introduce highly prejudicial evidence of codefendan t Marlin Mack’s alleged murdering of two people. In United States v. Evans , we held that: The decision whether to grant a severance is withinthe sound discretion of the trial court. We will not disturb the trial court’s decision absent an affirmative showing of abuse of discretion and a strong showing of prejudice . To establish abuse of discretion more is- 22 -

required than that separate trials might have offer ed a better chance for acquittal of one or more of the accused. 970 F .2d 663, 676 (10th Cir. 1992) (internal citations and quotations omitt ed) (emphasis added).
Furthermore, Mr. Stiger must overcome the presumpti on that “in a conspiracy trial it is preferred that persons charged together be tried together.” United States
v. Scott , 37 F.3d 1564, 1579 (10th Cir. 1994), cert. denied , 513 U.S. 1100 (1995).
2. Merits Pointing to a list of evidence, Mr. Stiger conclude s that the “cumulative and prejudicial impact” of that testimony requires severance. Noting the strong preference for joint trials of coconspirators, the government argues that, as a member of the conspiracy, Mr. Stiger was liable forits violent acts. Moreover, the government asserts that Mr. Stiger was himself heavily involved in the violent torture of Ms. Natale. Further, the government contends that he suffered no prejudice from the denial of severance. Mr. Stiger cannot establish reversible error. Evenif he could show that the District Court abused its discretion in denying his motion to sever, he cannot make “a strong showing of prejudice.” Evans , 970 F.2d at 676. “Prejudice occurs when there is a serious risk that a joint tr ial will compromise a specific trial right of one of the defendants, or prevent th e jury from making a reliable judgment about guilt or innocence.” United States v. Edwards , 69 F.3d 419, 4349 Mr. Stiger, for the first time on appeal, also argu es that the admission of

the summary testimony violated his Sixth Amendment right “to be confronted with the witnesses against him.” U.S. Const. amend . VI. Because he never raised that objection before the District Court, we review it for plain error. United (continued...) - 23 - (10th Cir. 1995) (internal quotations omitted). As noted above, see supra pp. 2-3, the government introduced extensive evidence at tri al proving Mr. Stiger’s involvement in the conspiracy. In light of this ev idence, Mr. Stiger has failed to make a strong showing of prejudice, and we affirm the decision of the District
Court. F. Summary Witness Testimony
1. Standard of Review Mr. Stiger next argues that the District Court erre d in allowing Officer Harold Adair to present summary testimony and exhib its. “We review a district court’s evidentiary rulings for abuse of discretion.” United States v. Curtis , 344 F.3d 1057, 1067 (10th Cir. 2003). “In reviewing a court’s determination for abuse of discretion, we will not disturb the determ ination absent a distinct showing it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment.” United States v. Mitchell , 113 F.3d 1528, 1531 (10th Cir. 1997). Even if we find that the District Court erred, we must also determine whether the err or “affect[ed] substantial rights,” i.e., whether it is “harmless error.” Fed. R. Crim. P. 52(a). 99 (...continued)

States v. LaHue , 261 F.3d 993, 1009 (10th Cir. 2001) (“Where a Con frontation Clause objection is not explicitly made below we wi ll not address the constitutional issue in the absence of a conclusionthat it was plain error for the district court to fail to raise the constitutional issue sua sponte.”) (alteration and internal quotations marks omitted). Seeing that th ere is “overwhelming and essentially uncontroverted” evidence of his guilt a s to the charged or a closely linked crime, see United States v. Gonzalez Edeza , 359 F.3d 1246, 1251 (10th Cir. 2004), he cannot satisfy that standard. - 24 - 2. Merits Mr. Stiger challenges the admission of five exhibit s and the accompanying testimony. First, Mr. Stiger objects to a chart of fered by Officer Adair that purported to detail the organizational structure of the conspiracy. Officer Adair testified that he constructed this chart both from trial testimony and from interviews conducted during the investigation. On appeal, Mr. Stiger reasserts his contention that Officer Adair gleaned much of his t estimony from sources not admitted at trial. As such, he urges that the summ ary testimony and charts were inadmissable hearsay. In response, the government claims that the District Court properly admitted the testimony and charts as expert testimony pursuant to Fed. R. Evid. 702. The government also notes that many cou rts have allowed summary testimony and charts pursuant to Fed. R. Evid. 611( a), finding them to be helpful to the jury. As this Court has noted, a party may only admit sum mary testimony under Fed. R. Evid. 611(a) if the District Court previous ly admitted at trial the evidence- 25 -

that forms the basis of the summary. See United States v. Ray , 370 F.3d 1039 (10th Cir. 2004), vacated on other grounds by 125 S. Ct. 995 (Jan. 24, 2005). Because Officer Adair’s own testimony indicates that he constructed the organizational chart from non-trial sources, the Di strict Court could not have properly admitted it pursuant to Fed. R. Evid. 611( a). We need not decide, however, whether it fell within the ambit of some o ther evidentiary rule because any possible error did not substantially influence the outcome of the trial. See Magleby , 241 F.3d at 1318; see also supra pp. 2-3. Second, Officer Adair offered a time line illustrat ing the trips taken by the members of the conspiracy and the specific drugs tr ansported on those trips. Officer Adair testified that he prepared the time l ine solely from evidence admitted at trial. Mr. Stiger did not object to th e admission of the time line, but did object to a portion of Officer Adair’s accompanying testimony as going beyond the evidence admitted at trial. The Distric t Court sustained that objection, re-instructed the government that “[t]his is a summ ary of the evidence, not a summary of the investigation,” and redacted the obj ected-to evidence. Because the District Court sustained Mr. Stiger’s objectionat trial, there is no error to correct on appeal. Third, Officer Adair offered a chart of the total d rug amounts testified to at trial. He testified that the chart was based exclu sively on evidence admitted at- 26 -

trial. Mr. Stiger lodged an ambiguous objection ag ainst the chart. Reviewing the record evidence, we find that the District Court pr operly admitted the chart pursuant to Fed. R. Evid. 611(a) because it was und oubtedly helpful to the jury in this particularly complex case, the District Court offered extensive limiting instructions, and the chart was based exclusively o n previously admitted evidence. See Ray , 370 F.3d at 1046–48. Finally, Officer Adair offered two other charts, on e detailing the specific drug amounts attributable to each defendant and ano ther illustrating the drug prices charged by the conspiracy in various transac tions. He testified that both charts were based exclusively on previously admitte d evidence. Mr. Stiger did not object to the introduction of either chart nor to the accompanying testimony at trial. “We review the district court’s ruling admi tting evidence . . . if no objection is made, for plain error.” United States v. Castorena-Jaime , 285 F.3d 916, 931 (10th Cir. 2002). Mr. Stiger cannot satisfy that standard. See United States v. Gonzalez Edeza , 359 F.3d 1246, 1251 (10th Cir. 2004) (holding that when “overwhelming and essentially uncontroverted” evidence of guilt exists as to the charged or a closely linked crime, the plain error standard is not met); see also supra pp. 2-3. G. Speedy Trial Act
1. Standard of Review- 27 -

Finally, Mr. Stiger argues that the District Court erred in concluding that the Speedy Trial Act, 18 U.S.C. § 3161 et seq., doe s not apply to an information filed pursuant to 21 U.S.C. § 851(a)(1). We reviewthe District Court’s interpretation of this statute de novo. United States v. Alahmad , 211 F.3d 538, 541 (10th Cir. 2000).
2. Merits On April 30, 2002, the government filed an informat ion pursuant to § 851(a)(1), notifying Mr. Stiger of its intent to us e his prior felony convictions to enhance any sentence resulting from the current pro secution. On July 11, 2002, Mr. Stiger filed a motion to dismiss this informati on, claiming that the Speedy Trial Act required the government to commence trial against him on the § 851(a)(1) information within seventy days of its filing. The District Court denied his motion, finding that the “plain language ” of the “Speedy Trial Act only applies to informations and indictments which charg e ‘the commission of an offense.’” For the reasons provided in a companioncase, we affirm the District Court’s Speedy Trial Act ruling. See United States v. Vaughn , 370 F.3d 1049, 1054–55 (10th Cir. 2004).
III. CONCLUSION Therefore, we AFFIRM the judgment of the District C ourt except as to the mistrial claim, which we REVERSE and REMAND with in structions to hold an- 28 -

evidentiary hearing in accordance with this opinion. Our opinion in Stiger I is
VACATED.