PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JODY RUFINO MARTINEZ , a/k/a Mono, Defendant - Appellant. No. 22-2034

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:19-CR-03725-JB-1)

________________ _________________ Nichols T. Hart (Carter B. Harrison IV with him on the briefs), Harrison, Hart & Davis, LLC, Albuquerque, NM, fo r Defendant-Appellant. Richard C. Williams, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, Albuquerque, New Mexico, w ith him on the brief), Las Cruces, NM, for Plaintiff-Appellee.

________________ _________________ Before HOLMES , Chief Judge, MORITZ , and EID , Circuit Judges.

________________ _________________ HOLMES , Chief Judge.

________________ _________________ A jury convicted Jody Rufino Martinez, a member of the Syndicato de Nuevo México (“SNM”), a violent New Mexico-b ased prison gang, of murder under the Violent Crimes in Aid of Racketeeri ng (“VICAR”) Act, 18 U.S.C. § 1959(a), FILED United States Court of Appeals Tenth Circuit 

### February 16, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 12 racketeering conspiracy, and unlawful possess ion of a firearm. Mr. Martinez appeals his convictions, arguing that th e district court abused its discretion in three principal ways: (1) by denying his motion to dism iss under the Speedy Trial Act, (2) by admitting unduly prejudicial ev idence during trial, and (3) by denying his motion for a new trial after evidence emerged that he wa s involved in threats to kill the presiding district court judge. Exer cising jurisdiction under 28 U. S.C. § 1291, we affirm.
I. B ACKGROUND Mr. Martinez’s convictions stem from th e 2008 murder of David Romero and the 2018 shooting of Donald Salazar. To be gin, we offer a general overview of the facts established at trial concerning the cu lture and operations of SNM and those two incidents. Next, we brie fly summarize the procedural history leading to Mr. Martinez’s appeal. We explore in gr eater detail the factual and procedural background pertinent to Mr. Martinez’s appellate challenge s in the relevant sections of our analysis.
A. Factual Background
1. SNM SNM has operated within New Mexico’s prison system for d ecades. Indeed, the gang’s purpose is to “run the prison sy stem,” a mission it accomplishes through violent crime and drug distribution, bot h inside the prison system and “on the streets.” R., Vol. 4, at 892 (T est. of Mario Rodriguez) (Tri al Tr., Vol. 3, dated Mar. 3, 2021). In that regard, violence is central to the gang’s life a nd the activities of gang members. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 23 Gang leadership exercises control over the organization by embracing a “[b]lood in, blood out” philosophy, meaning that a prospective member must “spill an enemy’s or rival’s blood,” id. —which is called “[e]arning your bones,” id. at 895—“and [then] there is no ge tting out until you are dead,” id. at 892. When a person becomes a member (a “carnal”), he is expected “to perpet uate the violence of the SNM” by assaulting or killing rivals, id. at 894, sex offenders, and “snitches,” id

. at 1341 (Test. of Matthew Martinez) (Trial Tr., Vol. 5, dated Mar. 5, 2021). A member’s capacity to inflic t violence is a critical comp onent of the organization’s broader effort to maintain status in New Mexico’s crim inal underbelly. As one SNM member explained, SNM maintains its primacy “by instilling fear in other people.” Id. at 2060 (Test. of Billy Cordova) (Trial Tr., Vol. 8, dated Mar. 10, 2021). In SNM’s view, that means that “if you move on one of us, we move back on you.” Id. In that regard, a “move” on SNM wa s always perceived as a sign of “disrespect.” Id. And “respect” in SNM’s milieu is “everything”; it is so important that it behooves SNM members to “pro tect it with [their] li[ves].” Id. at 897. Because tolerating disrespect threatens to unravel the fa bric of its power—that is, fear—SNM members cannot countenance it in “any way, shape, or fashion, no matter how severe the consequences are”—even if those consequences entail “get[ting] a life sentence.” Id. at 2060. But just as “get[ting] a life sentence” to maintain “respect” will get you “a pat on the back” in SNM, id ., disobeying orders will ge t you “green l[it]”—meaning, killed, id. at 944 (Test. of Roy Martinez) (Trial Tr., Vol. 3, dated Mar. 3, 2021). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 34 With death as the punishment for insubordi nation, SNM’s carnals have “no choice,” in their view, but to follow orders—incl uding orders to kill people suspected of cooperating with law enforcement. Id. at 923. As one SN M member explained, “[w]hen there is a green light” on the lin e, SNM members “don’ t take th[e] chance” of being disobedient. Id. at 2052.
2. The FBI’s Investigation into SNM In March 2015, the FBI launched an i nvestigation of SNM after receiving information regarding threats to New Mexico Department of Corrections personnel. The investigation and resulting charges oc curred in phases, the last of which was prompted by the 2019 murder of a cooperati ng witness. The government arrested Mr. Martinez as part of this latter phase of the investigation.
3. The VICAR Charge and the 20 08 Murder of David Romero

a. Mr. Romero’s Failed Drug Delivery Though not a member of SNM, David Ro mero, Mr. Martinez’s cousin, agreed to smuggle drugs into New Mexico prison fo r the gang’s consumption. The risks were high: “if someone was as ked to smuggle drugs into a jail and failed to follow through” they would be punished with “s evere consequence[s],” including “[g]reat bodily harm.” Id. at 1112 (Test. of Rudy Salazar) (Trial Tr., Vo l. 4, dated Mar. 4, 2021). But, according to Rudy Salazar (“Rudy”), who joined SNM in the summer of 2008, Mr. Martinez had enou gh confidence in Mr. Romero to entrust him with “a package of drugs” intended for his imprisoned compatriots. Id. at 1113. Mr. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 45 Romero, however, “burnt” Mr. Martinez by “never turn[ing] himself in to the [authorities], and . . . disa ppearing” with the goods. Id. When word got around, the “carnals” took Mr. Romero’s failure to hold up his end of the deal as “disrespect.” Id. at 1358. In effect, by absconding with the drugs, Mr. Romero broke “one of the codes that you never break”: he “cross[ed] the SNM.” Id. Mr. Martinez responded by calling an Albuquerque-based SNM associat e, Billy Cordova (“ Billy”), to “hold” Mr. Romero “if . . . he show[ed] up” at a “sugar shack”— viz. , a “heroin house”— “because he had burned [SNM].” Id. at 2061–62. Billy neve r had the opportunity to “hold” Mr. Romero, as the latter ne ver appeared in Albuquerque.
b. The Murder In November 2008, Mr. Romero emerged but “was on the run” and told Rudy that he “wanted to turn himself in.” Id. at 1111. Rudy told Mr. Martinez that Mr. Romero “was looking for help to turn hi mself in,” and, more specifically, “was looking for another package of drugs” to carry as he surrendered to authorities. Id. at 1114. Mr. Martinez appear ed amenable and personally arranged for Mr. Romero to smuggle additional drugs into the county jail. But the trial record showed that Mr. Martinez had othe r plans. Specifically, it showed that Mr. Martinez, along with a gr oup of affiliates, including Rudy, “picked up [Mr. Romero] in front of a project house” and brought him to SNM member Jerome Cordova’s (“Jerome”) home in Chimayo, New Mexico. Id. at 1116–17. Everyone—including Mr. Romero, who st ruggled with addiction—proceeded to consume drugs. Mr. Martinez, however, c onfronted Rudy, presenting him with “a Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 56 foot-and-a-half length of cord”—specifically , cut jumper cable cord—and told him “this is on you.” Id. at 1120. Rudy understood Mr . Martinez—“who was calling the shots that evening”—to be orderi ng him “to kill David Romero.” Id. at 1118, 1120. Any doubt regarding Mr. Martinez’s de signs was erased by his subsequent conduct. Using duct tape, Mr. Martinez secured the cut jumper cable s to Rudy’s hands and followed him to the bedroom where Mr. Romero was “getting high.” Id. at 1121–22. When Rudy entered the bedroom, he saw that Mr. Romero “had a syringe in one hand and a spoon in the other,” and “had just fini shed” shooting up. Id. Upon seeing Rudy, Mr. Romero appeared “shock[ed ],” his eyes bulging from cocaine use. Id. at 1122. Rudy testified that he hesitate d to kill Mr. Romero. But Mr. Martinez “gave [him] a nudge” and ordered “[a]hora,” 1 —prompting him to “t hr[o]w the cord over [Mr. Romero’s] neck,” wrapping it around twice. Id. at 1123. Mr. Martinez jumped to the head of the bed, placed Mr. Romero’s head in a leglock, and “twisted it from side to side, trying to break his neck.” Id. at 1125–26. Eventually, Mr. Romero stopped moving. After checking for a pulse and finding none, Mr. Martinez confirmed that Mr. Romero was dead. Mr. Martinez then assisted the group in removing Mr. Romero’s clothes and the bed sheets—as they were murder eviden ce, after all—and placed them “in a . . . big black trash bag.” Id. at 1128. Members of th e group, including Rudy and Jerome, then wrapped Mr. Romero’s body in a comforter and loaded it in the back of

1 According to Rudy Salazar’s testimony, “[a] hora” means “now.” R., Vol. 4, at 1123. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 67 a pickup truck. Mr. Martinez tasked Rudy with disposing of Mr. Romero’s body. Yet, before Rudy could do so, Mr. Martin ez gave him a more pressing assignment: “Before I jumped into the truck, [Mr. Ma rtinez] grabbed me, pulled me towards him, and poked me in my throat . . . and handed me a knife and said , ‘Stab him. Make sure he’s dead.’” Id. at 1129–30. Rudy did as instru cted, and, with Jerome’s help, “rolled [Mr. Romero] off [a] bridge.” Id. at 1133. From there, the pair drove to a back road where they set fi re to Mr. Romero’s clothe s and the bedding used to transport his body. Mr. Martinez greeted th em when they retu rned, shaking their hands, and affectionately telling Rudy, “I’ll talk to you later.” Id. at 1136. On Friday, December 5, 2008, Mr. Ro mero’s body was found in a river near Chimayo, New Mexico. When police disc overed Mr. Romero’s body, “they flipped [it] over, [and] . . . saw a stab wound . . . to the neck.” Id. at 1028 (Test. of Algin Mendez) (Trial Tr., Vol. 4, dated Mar. 4, 2021). The o fficial cause of death was a stab wound to the neck, although stra ngulation could not be ruled out.

c. The Failed Alibi New Mexico State Police interviewed Mr . Martinez the day after finding Mr. Romero’s body, and again four days later. Mr. Martinez claimed that he had been with his then-wife, Judith Perez-Martinez, during the re levant timeframe. Indeed, when the police talked to he r, she provided a partial alib i. At trial, however, Ms. Perez-Martinez testified that Mr. Martinez had not been w ith her, and that she had lied because she feared Mr. Martinez. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 78 d. Mr. Martinez’s Admissions Though Mr. Martinez denied killing Mr. Romero to the police, the government presented evidence showing he was eager to discuss the murd er with SNM associates. According to SNM member Jo se Lovato, Mr. Martinez t ook credit for Mr. Romero’s murder and bragged that “he slit [Mr. Romero’s] throat.” Id. at 2134 (Test. of Jose Lovato) (Trial Tr., Vol. 8, dated Mar. 10, 2021). Likewise, Mr. Martinez boasted to Billy Cordova that he “whacked” Mr. Rome ro, “slit his throat , and dumped him in the river.” Id. at 2065. Despite Mr. Martinez’s evid ent pride in killing Mr. Romero, SNM leadership failed to, in his view, adequately compensate him for his “work.” Id. at 2186 (Test. of Jerry Montoya) (Trial Tr., Vol. 8, da ted Mar. 10, 2021). According to one SNM associate to whom Mr. Mar tinez complained, Jerry Mont oya, Mr. Martinez thought his murder of Mr. Romero entitled him to receive the “keys to the north”—meaning “[b]eing the boss, . . . [a nd] running the streets” in northern New Mexico. Id. If not that, Mr. Martinez th ought, at the very least, he deserved “a bigger tribute” from SNM member Matthew Martinez, who “was on the streets, sending in drugs and money to his friends” in prison. Id. at 2187. In that regard , when lamenting the size of his drug tribute, Mr. Martinez emphasized the nature of the “work” he had “put in” for the organization—“committ[ing] . . . a murder”—by making a strangling motion with his hands. Id. at 2187–88. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 89 4. The RICO Conspiracy, the Felo n-in-Possession Charge, and the 2018 Shooting of Mr. Donald Salazar In Count 2 of the Superseding Indict ment, the government alleged that Mr. Martinez engaged in a RICO conspiracy. To convict Mr. Martinez on that count, the jury had to find that he joined an agreem ent to conduct the affairs of an enterprise through a pattern of racketeering activity. This, in turn, require d the jury to agree that at least one member of the conspiracy committed two or more r acketeering acts. The Superseding Indictment alleged severa l such acts, including the 2018 shooting of Donald Salazar (“Donald”), Rudy Salazar’s brother. Mr. Martinez’s shooting of Donald also served as the basis for Count 4, the felon- in-possession charge. The pertinent facts established at trial concerning this matte r are as follows.

a. The Dispute Between Donald Salazar and Mr. Martinez While imprisoned in the summer of 2018, Mr. Martinez got into a fight with Donald, a member of a rival street gang. According to Donald, the fight unfolded after Mr. Martinez refused to relay a message to other inmates. “[H]urt” by Mr. Martinez’s rejection, Donald “walked away.” R., Vol. 4, at 1594 (Test. of Donald Salazar) (Trial Tr., Vol. 6, dated Mar. 8, 2021). As he did so, Mr. Martinez “called [him] a bitch.” Id. Later that day, Donald c onfronted Mr. Martinez, but Mr. Martinez “thr[e]w the first punch” and hit him with a “jab.” Id. at 1596–1597. A melee ensued and the end results were unfa vorable to Mr. Martinez: Donald, to be sure, “had a bloody nose,” but Mr. Mar tinez sported “a black eye” and was beaten “bloody.” Id. at 1598. Even Mr. Martinez knew th at he lost. Recounting what Mr. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 910 Martinez told him of the struggle, Mr. Lovato testified that Donald “got the best of” Mr. Martinez. Id. at 2132. Under SNM’s rules, th is was “an act of disrespect.” Id. And the consequence for “d isrespect” is “death.” Id.
b. The Shooting On October 24, 2018, by happenstance, Mr. Martinez and Donald ended up at the same house to buy drugs. When Mr. Martinez first en tered the house, “he was in a good mood.” Id. at 1603. “But when he s[aw ] [Donald], his whole demeanor changed.” Id. Mr. Martinez confronted Donald, and referring to their prison fight, asked “why [he was] going around talk ing that [he] fucked [him] up.” Id. Donald quipped, “Well, I didn’t have a black eye or nothing, homes.” Id. at 1603–04. Mr. Martinez exited the house, retrieved a gun from his truck, returned, and, though aiming for Donald’s gen itals, shot him in the leg. After hearing the gunshot, a sixteen-year-old child entered the room; Mr. Martinez told him to “[t]ake [Donald] to the hospital or [he would] shoot [him], too.” Id. at 1816 (Test. of Joey Rodriguez) (Trial Tr., Vol. 7, dated Ma r. 9, 2021). When police a rrested and interviewed him over Donald’s shooting, Mr. Martinez advise d that he was “not a gun-type person, I’m a knife-type person.” Id. at 1985 (Test. of Sgt. Carolin e Brandle) (Trial Tr., Vol. 8, dated Mar. 10, 2021). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1011 c. Mr. Martinez’s Subsequent Statement In 2019, while jailed in Santa Fe, Mr. Martinez instructed Jo se Lovato to kill Donald if Mr. Lovato saw him when he was released—and to make sure “that everybody knew it was for the S.” 2 Id. at 2133.
B. Procedural History On October 16, 2019, a one-count indict ment charged Mr. Martinez with being a felon in possession of a firearm and amm unition. Following Mr. Martinez’s initial indictment, the district cour t scheduled trial to begin on December 16, 2019. Eleven days before the scheduled trial date, on December 5, 2019, th e government filed a complaint charging Mr. Martin ez with a racketeering cons piracy in violation of 18 U.S.C. § 1962(d). On December 11, 2019, the grand jury returned a Superseding Indictment containing that charge; the Superseding Indi ctment also realleged the felon-in-possession charge , renumbered as Count 2. On January 9, 2020, the grand jury returned a Second Superseding Indi ctment, which realleged the felon-in2 The government elicited this testimony from Mr. Lovato. However, apparently neither during the course of Mr . Lovato’s examinatio n nor later in its appellate briefing does the government attemp t to clarify the precise import of Mr. Martinez’s “for the S” comment. A reasona ble jury likely could have inferred that, according to Mr. Lovato, Mr. Martinez was instructing him to te ll everybody that the killing was for SNM to retaliate for Donald’s act of disrespect. And that is the way the government framed this exchange in its closing argument to the jury. See R., Vol. 4, at 2797 (discussing Donald’s “act of disrespect” in a ttacking Mr. Martinez and Mr. Lovato’s knowledge that Mr. Mar tinez “had retaliated for that act of disrespect”). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1112 possession and racketeering conspiracy charges and raised VICAR and witness tampering allegations. 3 After the grand jury returned the Supe rseding Indictment in December 2019 but before it returned the Second Supersedi ng Indictment in January 2020, the parties attended a pretrial conference. At the conference, Mr. Martin ez advised that he intended to move to sever the counts. The government opposed severance and, owing to its anticipated disclosure of approximately 90,000 pages of discovery related to the racketeering ch arge, said that a continuan ce might be necessary if a joint trial was to be held. Both parties filed motions later that day. As it had previous ly telegraphed, the government moved to continue the December 16 trial, citing the n eed to disclose the racketeering discovery and the risk that de fense counsel would be ineffective without sufficient time to revi ew it. For his part, Mr. Martinez filed a motion to sever based on “an untenable conflict” between waivi ng “the at-most-70-days Speedy Trial Act protection for the felon-in-possession charge [and] the at-least-30-days Speedy Trial Act protection for the RICO Conspiracy ch arge,” as well as due to the purported inadmissibility of gang-affiliation evidence in the felon-in-possession trial. R., Vol. 1, at 59 (Def.’s Mot. to Sever Offenses, f iled Dec. 12, 2019) (hereinafter the “Motion to Sever”). According to Mr. Martin ez, these factors cr eated prejudice that necessitated severance under Federal Rule of Criminal Procedure 14. As discussed in

3 The jury acquitted Mr. Martinez of w itness tampering; that charge is not subject to the instant appeal. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1213 greater detail, infra , the district court orally denied Mr. Martinez’s Motion to Sever and subsequently granted the govern ment’s motion to continue. Later, on January 19, 2021, Mr. Martin ez moved to dismiss the felon-inpossession charge on Speedy Trial Act grounds . On January 27, 2021, the district court entered a written memorandum opin ion and order explaining its decision to deny Mr. Martinez’s Motion to Sever. Then , on February 18, 2021, the district court orally denied Mr. Martinez’s motion to dismiss under the Speedy Trial Act. Finally, Mr. Martinez’s tria l commenced on March 1, 202 1. The jury returned its verdict on March 16, 2021, finding Mr. Martinez guilty of the counts of VICAR, racketeering conspiracy, and felon-in-posse ssion, and acquitting him of the count of witness tampering. Following the jury’s verdict, Mr. Ma rtinez filed a sealed motion for new trial in which he argued that te stimony allegedly linking Mr. Martinez to threats against the court entitled him to a ne w trial. The district court denied that motion in a memorandum opinion a nd order on July 12, 2021.
II. S TANDARD OF R EVIEW We review each of Mr. Martinez’s appe llate challenges through the prism of our abuse of discretion standard. See United States v. Banks , 761 F.3d 1163, 1174 (10th Cir. 2014) (reviewing th e denial of a motion to di smiss for violation of the Speedy Trial Act, involving ends-of-justice c ontinuances, for an abuse of discretion); United States v. Thompson , 524 F.3d 1126, 1131 (10th Cir. 2008) (same); Sprint/United Mgmt. Co. v. Mendelsohn , 552 U.S. 379, 384 (20 08) (reviewing rulings applying Federal Rule of Evidence 403 for an abuse of discretion); United States v. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1314 Gwathney , 465 F.3d 1133, 1144 (10t h Cir. 2006) (reviewing the denial of a motion for a new trial under the abuse of discretion st andard). “A court abuses its discretion when it ‘renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.’” United States v. Perrault , 995 F.3d 748, 764–6 5 (10th Cir. 2021) (quoting United States v. Munoz-Nava , 524 F.3d 1137, 1146 (10th Cir. 2008)). And “[a] district court would n ecessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405 (1990). As such, “we review the district court’s complian ce with the legal requirements of the [statute or rule under which it made its ruling] de novo a nd its underlying factual findings for clear
error.” Banks , 761 F.3d at 1174. We have described the “clear-err or standard” as “deferential.” United States v. Nkome , 987 F.3d 1262, 1276 (10th Cir. 2021). To satisfy it, Mr. Ma rtinez must leave us with a “definite and firm convicti on that a mistake has been made.” United States v. Pulliam , 748 F.3d 967, 970 (10t h Cir. 2014) (quoting Manning v. United States , 146 F.3d 808, 812 (10th Cir. 1998)). Conversely, “[i]f the ‘court’s account of the evidence is plausible in light of the record viewed in its entirety,’ we may not reverse it even if we might have wei ghed the evidence differently.” Nkome , 987 F.3d at 1277 (alteration in original) (quoting United States v. Piper , 839 F.3d 1261, 1271 (10th Cir. 2016)). “Where there are two permissi ble views of the evid ence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City , 470 U.S. 564, 574 (1985). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1415 III. D ISCUSSION Mr. Martinez argues that the district cour t judge abused his discretion in three ways: (1) by basing his denial of Mr. Ma rtinez’s motion to dismiss under the Speedy Trial Act on a clearly erroneous interpreta tion of the facts; (2) by admitting unduly prejudicial evidence related to SNM-backed murders when Mr. Mar tinez conceded in his opening statement that SNM murdered law enforcemen t cooperators and those it perceived to be threats as part of its criminal enterprise; and (3) by failing to sua sponte recuse himself after hearing test imony that purportedly connected Mr. Martinez to violent threats against the di strict court judge himself. We offer additional background information rega rding each of Mr. Martinez’s appellate challenges before discussing the substantiv e legal frameworks gove rning his claims. After fully exploring his argum ents, we conclude that the district court did not abuse its discretion.
A. The Speedy Trial Act Claim
1. Factual Background

a. Mr. Martinez’s Motion to Sever and the Government’s First Motion to Continue On October 16, 2019, a federal grand jury returned an indictment against Mr. Martinez that alleged he knowingly po ssessed a firearm and ammunition as a convicted felon. The district court in itially scheduled Mr. Martinez’s trial for December 16, 2019. On December 11, 20 19, fifty-six days after the initial indictment’s filing, the grand jury re turned a Superseding Indictment. The Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1516 Superseding Indictment charged Mr. Mar tinez with one count of racketeering conspiracy and re-alleged the existi ng felon-in-possession allegation. The day after the grand jury return ed the Superseding Indictment, Mr. Martinez moved to sever th e charges in anticipation of the December 25, 2019, Speedy Trial Act deadline for his felon-in- possession charge. In that motion, Mr. Martinez urged that separate trials were necessary to ensure compliance with the Speedy Trial Act. More specifically, Mr . Martinez argued that the Superseding Indictment’s addition of th e racketeering conspiracy ch arge created an untenable conflict between two of the Speedy Trial Act’s guarantees: on the one hand, the Speedy Trial Act entitled him to a trial on his felon-in-possession charge within seventy days of indictment and, on the other hand, it shie lded him from going to trial on the racketeering conspiracy charge with fewer than thirty days to prepare a defense. Accordingly, se verance was necessary becaus e the felon-in-possession charge’s Speedy Trial clock was schedul ed to run on December 25, 2019. Mr. Martinez also emphasized the completion of discovery as to the felon-in-possession charge and his counsel’s dilig ent preparation relating to, a nd readiness to defend, that charge. Lastly, he argued that he w ould suffer prejudice if the government was unable to secure its witnesses—many of w hom had citations for failing to appear— for a rescheduled trial date. The governme nt, meanwhile, filed an opposed motion to continue a joint trial. The district court held a two-day pre-tr ial conference starting on December 12, 2019, the same day that Mr. Martinez moved to sever the charges. Of relevance here, Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1617 two issues occupied the dist rict court’s attention during the conference: (1) whether the court should sever the felon-in-possess ion count from the racketeering conspiracy count so that the felon-in-possession coun t could be tried without violating the Speedy Trial Act; and (2) whether it s hould grant the government’s opposed motion to continue the December 16, 2019, tria l date because it needed “to disclose discovery on the racketeering charge to defe nse counsel that . . . [was] approximately ninety thousand pages.” R., Vol. 1, at 54 (Mot. to Continue Trial, filed Dec. 12, 2019) (hereinafter the “First Mo tion to Continue Trial”). The next day, the court denied Mr. Martinez’s Motion to Sever but nevertheless expressed concer n “that the felon in possess ion [charge] might well be subject to a motion to dismiss on Speedy Trial Act grounds.” Id. , Vol. 4, at 105–06 (Pretrial Conf. Tr., Vol. 2, dated Dec. 13, 201 9). Indeed, it expressly noted that “the Government should be forewarned that I may end up dismissi ng [the felon-inpossession charge because of the] Speedy Trial Act.” Id. at 115. In that vein, following its decision to deny the Motion to Sever, the court asked the government if it still wished to pro ceed with a joint tria l; in so doing, the c ourt noted that it was “aiming toward dismissing . . . the felon in possession [charge] for lack of speedy trial.” Id. The government decided to conti nue forward with a joint trial. The district court then asked for Mr. Martinez’s position regarding the government’s First Motion to Co ntinue. Mr. Martinez responded: [T]o clarify our position on the G overnment’s motion to continue, I thought that we made it pretty exceptionally clear that our first Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1718 preference is to try a severed felon-in-posse ssion case next week. I do think we’ve been pretty rep eatedly clear on that point. But at the hearing yesterday, . . . the position we were taking . . . was that our second preferre d position was to just go ahead and try a joined felon-in-possession/ RICO case, and then our third position was to continue the entire trial. . . . . If we have to try a joined trial, we need a continuance. Id. at 142. In other words, a nd consistent with his Motion to Sever, Mr. Martinez did not “consent to a continuance of the fel on-in-possession trial” but agreed that a thirty-day continuance was necessary if he was “forced to have a joint trial”— viz. , if the district court denied his Motion to Sever. Id. at 144.
b. The District Court’s Order Continuing Trial Ultimately, on December 13, 2019, in an oral order, the court granted the government’s First Motion to Continue over Mr. Martinez’s objection. It found that “granting a continuance [would] strike a pr oper balance between the ends of justice and the best interests of the public and of the Defendant,” and noted that Mr. Martinez “represented” needing at minimum thirty days to pr epare for trial if his case was tried on both counts. Id. , Vol. 1, at 71 (Order, file d Dec. 13, 2019) (hereinafter the “Oral Order Continuing Trial” ). In that rega rd, the district court concluded that “continuing disclosure of discovery[] outwe igh[ed] the Defendant’s and the public’s interest in a speedy trial.” Id.

c. The Court Declares the Case Complex On January 9, 2020, the grand jury returned the Second Superseding Indictment. The Second Superseding In dictment included the VICAR charge Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1819 stemming from Mr. Martinez’s alleged partic ipation in the murder of David Romero, as well as a charge of witness tamper ing stemming from a threat to a government cooperator. On the parties’ joint motion, th e district court declared the case complex because the VICAR charge was death elig ible—which necessitated appointment of learned counsel and a mitigati on investigation—and also vacat ed the trial setting. In declaring the case complex, th e district court excluded “al l of the time from the filing of the Motion to Declare the Case Complex until the beginni ng of the jury trial . . . for the purposes of the Speedy Trial Act, an d [noted that] the ends of justice in granting the [government’s first motion to c ontinue] outweigh the be st interests of the public and the defendant in a speedy trial.” Id. at 139 (Mem. Op. & Order, dated Jan. 27, 2021).
d. The Government’s Second Motion to Continue On January 10, 2020, the government filed a second motion to continue. See United States v. Martinez , Crim. No. 19-3725 JB, ECF No. 59 (Second Mot. to Continue Trial, filed Jan. 10, 2020). That motion stated that “[d]efense counsel for the Defendant does not oppose this motion,” but noted for preservation purposes, that “[t]he Defendant clarifies that he consen ts to a continuance of the VICAR, RICO conspiracy, and witness tampering charges,” and that “[t]he Defe ndant continues to maintain his position that th e felon-in-possession charge should be severed, so he does not consent to a con tinuance on that count.” Id. at *3 & n.1. The district court granted this motion, too. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 1920 e. Mr. Martinez’s Speedy Tria l Act Motion to Dismiss On January 19, 2021, Mr. Martinez file d a motion to dismiss the felon-inpossession count under the Speedy Trial Act, urging that the Speedy Trial clock for the felon-in-possession charge ran in Decemb er of 2019. Mr. Martinez argued that “while the Government’s abi lity to supersede [an indict ment] is nearly unlimited, they do have to be prepared to stay on th eir pre-assigned timeline if that’s what the defense wants, as ‘the fili ng of a superseding indictme nt does not reset the speedytrial clock for offenses charged . . . in the original indictment.’” R., Vol. 1, at 92 (Def.’s Opposed Mot. to Dismiss Count 4 of the Indictment for Speedy Trial Act Violations, filed Jan. 19, 2021) (hereinafter the “S peedy Trial Motion to Dismiss”) (quoting United States v. Rushin , 642 F.3d 1299, 1305 n. 6 (10th Cir. 2011)). “Were it otherwise,” Mr. Ma rtinez suggested, “the Gove rnment could charge a defendant and hold him in captivity based on nothing more than probable cause, and then avoid ever having to bring the case to trial by simply supers eding the indictment to add some new charge every time the case got close to trial.” Id. He added that “this approach would be limited only by th e number of offenses in Title 18 that the Government, presenting ex parte , could convince a grand jury to indict a given defendant on, which is about as meaningful a limitation as saying that every forced continuance of a ham sandwich’s trial must be supported by some new culinary criticism of the ham sandwich as a dish.” Id. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2021 f. The District Court’s Speedy Trial Order On January 27, 2021, the district cour t issued a written memorandum opinion and order formally denying Mr. Martinez’s Motion to Sever and memorializing its December 13, 2019, Oral Orde r Continuing Trial, in wh ich it ruled that no Speedy Trial Act violation occurred. The court c oncluded that the Speedy Trial clock “(a) did not expire by the time the Court heard and orally denied [Mr. Martinez’s] Motion [to Sever]; and (b) has not been violated , because, although the First Superseding Indictment d[id] not reset the Speedy Tr ial Act clock for the felon-in-possession charge, the pretrial motions [i.e., the gove rnment’s First Motion to Continue] tolled the Speedy Trial Act clock; the Court gr anted two continuances; and the Court declared the case complex.” R. Vol. 1, at 111–12 (Mem. Op. & Order, filed Jan. 27, 2021) (hereinafter the “Sp eedy Trial Order”). More specifically, the distri ct court concluded that the Speedy Trial clock for Mr. Martinez’s felon-in-possession charge had not expired because: (i) the Speedy Trial Act clock had not expired at the time that the Court heard and orally denied [M r. Martinez’s] Motion [to Sever]; (ii) the Speedy Trial Act clock has never expired; ( iii) the Motion [to Sever] tolled the Speedy Trial Act clock for one day, . . . ; (iv) the Court granted a thirty-day a nd then a ninety-day continuance under 18 U.S.C. § 3161(h)(7) before trial was scheduled to take place; (v) the Joint Motion to Decl are the Case Complex tolled the Speedy Trial Act for seven days, . . . ; and (vi) the Court declared the case complex on the parties’ joint motion removing the seventy-day Speedy Trial Act cl ock restrictions . . . . Id. at 168–69 (citations omitted). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2122 Later, when discussing its denial of Mr . Martinez’s Motion to Sever, the court observed that “[Mr.] Martinez did not o ppose the [government’s First] Motion to [C]ontinue [Trial].” Id. at 169. “Consequently,” th e court explained, it “orally granted the United States’ Motion to Contin ue Trial for thirty days on both counts” under the Speedy Trial Act’s ends-of-justice provision. Id. at 169–70. The court emphasized that the Speedy Tria l clock had not expired at the time it heard—and orally denied—Mr. Martinez’s Mo tion to Sever. In fact, in the court’s view, the Speedy Trial “clock ha[d] never expired,” as the “Motion [to Sever] tolled the . . . clock for one day,” then the court granted, first, a thirty-day and then a ninety-day continuance before tria l was scheduled to take place. Id. at 168. Afterwards, “the Joint Motion to Declare the Case Complex tolled the Speedy Trial Act clock for seven days,” at which point the court’s decl aration that the case was complex “remov[ed] the seventy-day Speedy Trial Act restrictions.” Id. at 168–69. Elaborating on the tolling periods, the district court recognized that by the “time that [Mr.] Martinez filed the Motion [to Sever], thirteen days remained on the Speedy Trial Act clock, because no pretrial motions had been filed and fifty-seven days had elapsed.” Id. And, because the court orally de nied Mr. Martinez’s Motion to Sever on December 13, 2019, in its Oral Order Con tinuing Trial the “clock was . . . tolled for one day.” Id. Then—critically, for the purpo ses of this appeal—the c ourt explained that after it “orally denied the Motion [to Seve r], [Mr.] Martinez did not oppose the [government’s] Motion to [C]ontinue.” Id. Mr. Martinez contends that this Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2223 conclusion was factually mistaken—and that the court relied on it when denying his Speedy Trial Motion to Dismiss. Despite the court’s Speedy Trial Order, Mr. Martinez submitted a reply brief regarding his Speedy Trial Motion to Dismis s, noting that “[t]he Court was right before, but is wrong now, in its Speedy Trial Act analysis.” Id. at 223 (Def.’s Reply in Sup. of his Mot. to Dismiss for Speedy Trial Act Violations, fi led Feb. 16, 2021). Specifically, Mr. Martinez argued that: [i]f the addition of the RICO coun t to the previously single-count felon-in-possession indictment di d not reset the Speed Trial clock as to the felon-in-possession count—and the [c]ourt rightfully determined that it did not—then either the felon in possession count must be tried (a lone or joined with the new charge) before its Speedy Trial clock expires, orthere must be some basis for tolling (i.e., “excluding” time from) the felon-in-possession Speedy Trial clock, and that basis must aris e from the felon-inpossession charge , not merely from its joinder with the new RICO charge; otherwise, the determ ination that the superseding indictment did not reset the cl ock for the felon-in-possession charge would be illusory. Id. That is, in district court, Mr. Martinez asserted that the Superseding Indictment’s inclusion of a racketeering conspiracy charge could no t contribute to the court’s assessment of whether to toll the Speedy Trial clock as to hi s felon-in-possession charge. In that vein, Mr . Martinez observed that no party had argued that a singlecount felon-in-possession tria l justified an ends-of-justic e continuance or any other exclusion from the Speedy Tria l Act: “counsel were fully pr epared for the trial, the charge wasn’t and isn’t complex, it wasn’t tolled by more than a day due to pretrial motions (as the Court agreed in its [order]), and it didn’t require examination[s] to Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2324 determine the mental competen cy or involve interlocutory appeals or inter-District prisoner transport or any other statutory bases for tolling.” Id. at 227 (internal quotations omitted). Finally, Mr. Martinez challenged the di strict court’s conclusion that he consented to any motions to continue as applied to the felon-in-possession count, noting that he only discusse d potential remedies relate d to the government’s First Motion to Continue—for example, the amount of time necessary to prepare a joint trial if the matter was continue d—but consistently maintained that he did not wish to enlarge the Speedy Trial Act deadlines for the felon-in-possession charge. Because there was no justification for an ends of justice continuance, and because Mr. Martinez did not consent to any extensi on of the Speedy Trial clock deadlines, Mr. Martinez asked that the felon-in-possess ion count be dismisse d prior to trial.
2. Legal Framework “The Speedy Trial Act requires that a fe deral criminal tria l commence within seventy days of the filing of the indictment or the de fendant’s initial appearance, whichever occurs later.” Banks , 761 F.3d at 1175. “The Act excludes from this seventy-day period, inter alia , ‘[a]ny period of delay resu lting from a continuance . . . if the judge granted such a continuance on the basis of his findings that the ends of justice served by taking such action outwei gh the best interest of the public and the defendant in a speedy trial.’” Id. (quoting 18 U.S.C. § 3161( h)(7)(A)). “A court is required to set forth on the record, either orally or in writing, its reasons for making such a determination.” Id . That said, we have cautioned an ends-of-justice Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2425 continuance is “meant to be a rarely us ed tool for those ca ses demanding more flexible treatment,” United States v. Toombs , 574 F.3d 1262, 1269 (10th Cir. 2009) (quoting United States v. Doran , 882 F.2d 1511, 1515 (10t h Cir. 1989)), and “should not be granted cavalierly,” United States v. Williams , 511 F.3d 1044, 1049 (10th Cir. 2007). In determining whether to grant an e nds-of-justice continua nce, the district court must consider the factors listed in 18 U.S.C. § 3161(h)(7)(B). These factors include: (i) Whether the failure to grant su ch a continuance in the proceeding would be likely to make a c ontinuation of such proceeding impossible, or result in a miscarriage of justice[;] (ii) Whether the case is so unusua l or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial pr oceedings or for the trial itself within the time limits esta blished by this section[;]

. . . . (iv) Whether the failure to grant su ch a continuance in a case which, taken as a whole, is no t so unusual or so comple x as to fall within clause (ii), would deny the defe ndant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counse l, or would deny counsel for the defendant or the attorney for th e Government the reasonable time necessary for effective preparat ion, taking into account the exercise of due diligence. 18 U.S.C. § 3161(h)(7)(B). “If the district court fails to consid er [the Speedy Tria l Act factors], the continuance period cannot be excluded unde r the Act’s ends-of-justice provision.” Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2526 Banks , 761 F.3d at 1176 (quoting United States v. Larson , 627 F.3d 1198, 1204 (10th Cir. 2010)). “[T]he record must clearly establish [that] the district court considered the proper factors at the time such a continuance was granted.” Larson , 627 F.3d at 1204 (alterations in original) (quoting Toombs , 574 F.3d at 1268). If a defendant is not brought to trial within the time limits of the Speedy Trial Act, the indictment shall be dismissed on the defendant’s motion. See Rushin , 642 F.3d at 1303 (citing 18 U.S.C. § 3162(a)(2)). Importantly, “the filing of a supersed ing indictment does not . . . toll the speedy trial clock” for the offense charged in the original indictment. United States v. Apperson , 441 F.3d 1162, 1181 (10th Cir. 2006).
3. Analysis In assessing Mr. Martinez’s Speedy Tr ial Act challenge, it is helpful to understand, in the first inst ance, what he does not argue . He does not argue—as he did in district court—that a superseding indictment entitle s a defendant to a severance whenever the speedy-trial clock on an older charge would run before a joint trial can be held or, relatedly, that the basis for any Speedy Trial tolling must originate with the felon-in-possession charge. Nor does he contend that the court abused its discretion in denying his Moti on to Sever. Moreover, he does not (at least in his Opening Brief) suggest that th e court erred, as a matter of law, in concluding that any acquiescence to a 30-day continuance prompt ed by the addition of the racketeering Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2627 conspiracy charge was legally sufficient to create an ends-of-justice continuance for his felon-in-possession charge. 4 Rather, at bottom, Mr. Ma rtinez’s speedy trial chal lenges presented in his Opening Brief are predicated on three mode st propositions: (1) the court clearly erred

4 Mr. Martinez floats additional ar guments in his Opening and Reply Briefs. More specifically, in his Opening Brief, Mr. Mar tinez vaguely targets in a stray, single sentence the lega l sufficiency of “the trial court’s December 13, 2019, continuance,” which he avers “did not serve the ends of justice as to the felon-inpossession charge, and . . . did not opera te to exclude time from the felon in possession charge’s Speedy Tria l clock.” Aplt.’s Opening Br . at 34. Relatedly, in his Reply Brief, he argues th at the district court’s conc lusion that discovery needs supported a continuance was “[in]sufficien t” because “the reco rd shows that the government superseded [the indictment] to delay trial on the felon-in-possession charge rather than to complete discovery.” Aplt.’s Re ply Br. at 2. And—also in his Reply Brief—he resurrects a concern that he raised in district court: “whether the government could evade the time limit s of the Speedy Trial Act by filing a superseding indictment days be fore trial, force a continuan ce, and then assert that a superseding indictment tolls the clock for all charge s included in a previous indictment.” Id . at 5. Each of these arguments is waived under our briefing- waiver doctrine. “[W]e generally do not consider arguments made for the first time on appeal in an appellant’s reply brief,” as doing so “‘w ould be manifestly unfair to the appellee who, under our rules, has no opport unity for a written response.’” United States v. Leffler , 942 F.3d 1192, 1197 (10th Cir. 2019) (quoting Hill v. Kemp , 478 F.3d 1236, 1251 (10th Cir. 2007)). This means that appellants must raise their arguments in their opening brief. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (noting that “we routinely have declined to consider argumen ts that are not raised . . . in an appellant’s opening brief”). But it is not enough for an appellant to raise arguments there in a “perfunctory manner,” United States v. Walker , 918 F.3d 1134, 1151 (10th Cir. 2019) (quoting United States v. Wooten , 377 F.3d 1134, 1145 (10th Cir. 2004)), or through “scattere d sentences” that fail to “‘ indicate[] . . . appellant’s contentions and the reasons for them,’” United States v. Fisher , 805 F.3d 982, 991 (10th Cir. 20 15) (quoting 10 TH C IR

. R. 28(a)(8)). Such arguments are “inadequately presented” and we deem them waived. Bronson , 500 F.3d at 1104. Thus, Mr. Martinez’s alternative argum ents—floated, first in curs ory fashion in his Opening Brief and then developed in his Reply Brief—are the ve ry kind of “inadequately presented” theories we tr aditionally deem waived. Id. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2728 when it claimed in its Speedy Trial Order that he did not opp ose the government’s First Motion to Continue Trial; (2) the cour t relied on that mischaracterization in finding that the ends of justice merited a continuance under § 3161(h); and (3) the court’s reliance on a clearly erroneous factual finding effected an a buse of discretion. As such, he claims that “the re was not a sufficient record establishing that an ends of justice continuance was necess ary” because the factual basi s for the district court’s order was clearly erroneou s. Aplt.’s Opening Br

. at 34; see also id. at 35 (“Relying upon this statement to find that the ends of justice merite d a continuance that tolled the Speedy Trial clock was clear error.”). And, in the ab sence of such a record, the district court’s “holding of a tr ial for [the felon-in-possessi on] charge . . . violated the Speedy Trial Act.” Id. at 27. The government responds by arguing that “[t]here is nothi ng misleading, let alone clearly erroneous, about the court’s observation that ‘[a]fter the Court orally denied [Mr. Martinez’s] Motion [to Se ver], [Mr.] Martinez did not oppose the [government’s] Motion to [C]ontinue.’” Aplee.’s Resp. Br. at 20 (quoting Speedy Trial Order, R., Vol. 1, at 169). Certainly, the governme nt contends, Mr. Martinez “has pointed to nothing in the record that could leave [us] with a ‘definite and firm conviction that a mistake has been made.’” Id . (quoting Pulliam , 748 F.3d at 970). In our view, the government has the bette r of this dispute, and we accordingly reject Mr. Martinez’s narrow challenge predicated on th e district court’s ostensible factual error. When read against the “record . . . in its entirety,” Nkome , 987 F.3d at 1277 —including the procedural backgro und of Mr. Martinez’s case and his Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2829 representations during the pre- trial conference—the district court’s statement that Mr. Martinez “did not oppose” the government’s First Motion to Conti nue Trial is best understood as an acknowledg ment by the court that Mr. Martinez consented to a continuance upon condition of the court’s denial of his Motion to Sever. R., Vol. 1, at 169. That is, the court’s Speedy Trial Or der reflects Mr. Martinez’s position that he opposed the government’s Fi rst Motion to Continue Trial as part and parcel of his efforts to sever the racketeering conspiracy and fel on-in-possession charges but, to the extent that the court denied his Mo tion to Sever, he acknowledged needing time to prepare for th e joint trial. See Piper , 839 F.3d at 1271. Because, at the very leas t, this “‘account of the evidence is plausible,’” id. (quoting Anderson , 470 U.S. at 574), the district court’s “finding survives scrutiny and is not reversible,” United States v. Ellis , 23 F.4th 1228, 1247 (10th Cir. 2022). Consider, first, the procedural backdrop ag ainst which the district court made its findings and that, in turn, illu minates Mr. Martinez’s cond itional consent to an endsof-justice continuance under the Speedy Trial Act. The Speedy Trial Order expounded upon, and memorialized, the court’s December 13, 2019, oral ru ling denying Mr. Martinez’s Motion to Sever. The resolution of the Motion to Se ver was inextricably tied to Mr. Martinez’s position on the government’s First Motion to Continue. After all, the basis of Mr. Martinez’s Motion to Sever was his read iness to proceed to tria l on the felon-in-possession charge. Assenting to the governme nt’s First Motion to Continue prior to the district court’s adjudication of the Motion to Seve r would directly undercut Mr. Martinez’s Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 2930 efforts to sever the felon- in-possession charge from th e racketeering conspiracy charge—as the First Motion to Continue sou ght to give the part ies sufficient time to try both charges together . In other words, Mr. Mar tinez was not in a strategic position to consider agreeing to any additiona l time that the government sought in the First Motion to Continue so long as his Motion to Sever remained viable and the court had not denied it. Accordingly, it is no wonder then that , in its Speedy Trial Order, the district court em phasized that the “primary is sue” before it was whether it “should sever [Mr.] Martinez’s felon-in-po ssession of a firearm charge from his racketeering conspiracy charge .” R., Vol. 1, at 111. Mr. Martinez’s oral representations to the district court reflect this understanding by him of the connection between the se verance and continuance issues. As Mr. Martinez explained during the December 13th hearing, the Motion to Sever needed to be “resolved” before he could fully stake a position on the government’s First Motion to Continue. Id ., Vol. 4, at 100. The district court also understood the interplay between the part ies’ competing motions. Anticipating its denial of Mr. Martinez’s Motion to Seve r during the December 13th hearing, the court inquired whether a thirty -day continuance would affo rd Mr. Martinez sufficient time to prepare a defense. Mr. Martinez underscored that though he was “not waiving anything on [his] severance issue” and did not “consent to a continuance of the felon-in-possession trial,” “30 days . . . [was an] appropriate” amount of time to prepare a defense “if [he was] fo rced to have a joint trial.” Id. at 144; see also id. (representing to the district court that thirty days is “the minimum time [Mr. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3031 Martinez] need[ed] to prepare for trial”); id. at 143 (“And we thought that for a RICO case, a 30-day continuance made sense on the RICO [charge] for us to get the discovery . . . .”). Indeed, Mr. Martinez explained that, though his “first preference [was] to try a severed felon-in-possession case” at the initially scheduled tr ial date, his “second preferred position was to . . . try a jo ined felon-in-possession/[racketeering conspiracy] case” on the initial trial date. Id. at 142. Mr. Martinez’s second preferred position proved impossible due to the voluminous discovery the government needed to disclo se; to proceed to trial with out affording Mr. Martinez’s counsel an appropriate amount of time to re view the 90,000 pages of discovery in the government’s possession would severely limit counsel’s ability to re nder effective assistance. Therefore, Mr. Martinez conceded that his “third posi tion was to continue the entire trial.” Id. These exchanges make clear that Mr . Martinez agreed to the continuance insofar as the court denied his Motion to Sever and did not consent to the continuance insofar as the court might grant his Motion to Sever. 5 To be sure, even the government acknowledges that Mr. Mar tinez “could not have made it more apparent that he . . . did not consent to a continuance of [the felon-in-possession] count.” Aplee.’s Resp. Br. at 20. And we acknowledge that, if read in isolation, the district court’s statement that “[Mr.] Martinez did not oppose the [government’s]

5 As noted, supra , Mr. Martinez does not argue on appeal that the district court erred in denying hi s Motion to Sever. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3132 Motion to [C]ontinue,” is techni cally incorrect. R., Vol. 1, at 169. However, we “do not read particular statements of the district court in isolation.” Ellis , 23 F.4th at 1244. Returning to the Speedy Trial Order, the district court quoted most of Mr. Martinez’s representations th at, though not his first choi ce, he would need a thirtyday runway to prepare if forced into a joint trial. It is implausible that the district court misinterpreted Mr. Mar tinez’s position so shortly afte r his explicit opposition to the government’s First Motion to Continue. The Speedy Trial Order refl ects that the district c ourt initially continued the joint trial for 30 days, owing to the governme nt’s need to disclo se some 90,000 pages of discovery related to the racketeering co nspiracy charge before trial, and Mr. Martinez’s admitted need for additional time to prepare for a jo int trial—even though he had sought to avoid a joint trial. See R., Vol. 1, at 169– 70 (“Consequently, the Court then orally granted the United States[ ’] Motion to Continue . . . for thirty days on both counts under 18 U.S.C. § 3167(h)(7) . . . .”); see also 18 U.S.C. § 3161(h)(7)(B)(iv) (“Whether the failure to grant such a continuance in a case . . . would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for ef fective preparation. . . .”). Thus, read in the proper context, the Speedy Trial Order’s statement that Mr. Martinez “d id not oppose,” R., Vol. 1, at 169, the governm ent’s Motion to Continue—at th e very least—is “plausible in light of the record vi ewed in its entirety,” Anderson , 470 U.S. at 574. Mr. Martinez fails to cite any case in which we have found clear error under analogous circumstances. Accordingly, we cannot say that the district court clearly Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3233 erred. And, in the absen ce of clear error, we cannotagree with Mr. Martinez’s narrow, fact-based argument that the district court abused its discretion. See United
States v. Watson , 766 F.3d 1219, 1234 (10th Cir. 2014). We thus affirm.
B. The Cumulative and Prej udicial Murder Testimony Mr. Martinez next argues that the distri ct court abused its discretion when it admitted “enterprise evidence” consisting of SNM-ordered murders unrelated to him after he “explicit[ly] conce[de d] . . . the criminal ente rprise elemen t.” Aplt.’s Opening Br. at 28. Specifically, he clai ms that the admissi on of this evidence violated Federal Rule of Evidence 403. We provide the factua l background pertinent to Mr. Martinez’s Rule 403 claim and then di scuss the applicable legal framework. We conclude that the district court did not abuse its disc retion, as the probative value of the evidence exceeded its prejudicial effect.
1. Factual Background

a. Mr. Martinez’s Motion in Limine and the District Court’s Oral Ruling Prior to trial, Mr. Mar tinez filed a motion in lim ine seeking to exclude “evidence regarding murders al legedly carried out by SNM members, violent attacks carried out by SNM members, and the alle ged SNM plan to assassinate [] former” New Mexico Corrections Department official s. R., Vol. 1, at 211 (Def.’s Mot. in Lim. to Exclude Evid. of Unrelated Violen t Crimes as Enter. Evid., filed Feb. 16, 2021). More specifically, th rough that motion, Mr. Martin ez sought to exclude at trial any evidence related to the murders of Frank Cas tillo, Rolando Garza, Freddie Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3334 Sanchez, Javier Molina, Leroy Lucero, Adri an Burns, and Shane Dix, the attacks on Julian Romero and Jose Gomez, and an alleged conspiracy to murder Gregg Marcantel and Dwayne Santistevan of the New Mexico Corrections Department, all of which were violent crimes that served as the basis for charges in other SNM trials and cases, and none of whic h involved Mr. Martinez. Mr. Martinez premised his motion on Rule 403, arguing that “[a]dmit ting into evidence th e alleged murders, violent attacks, and alleged assassination pl ot . . . would result in an exceptionally high risk that Mr. Martinez [will] be convi cted because the jury believes that he, and all alleged SNM members, are the types of persons who woul d commit murder,” rather than for a proper purpose. Id. at 221. The district court granted in part and deni ed in part the motion. “[T]o limit the amount of time . . . spen[t] on violence,” the court decided that if Mr. Martinez conceded in his opening statement that SNM is a racketeering ente rprise engaged in murder, witness intimidation, and drug tra fficking, then the court would limit the government to presenting evidence of three unrelated murders or attempted assaults as racketeering evidence. Id. , Vol. 4, at 208–09 (Trial Tr ., Vol. 1, dated Mar. 1, 2021). In response, the gove rnment sought clarificati on as to whether it could “mention . . . other murders” for “explan ation purposes,” to which the court elaborated that its three-mu rder rule did not preclude the government from referring to other murders, as doing so might be necessary for witn esses’ testimony. Id. at 209. Nevertheless, the court advised that if the government was “getting into so many murders,” Mr. Martinez could rightfully object. Id. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3435 b. Mr. Martinez’s Opening Statement Following this ruling, Mr. Martinez e xplicitly conceded in his opening statement that SNM engaged in racketeering activity: We don’t dispute any of the followi ng. SNM exists. It’s a prison gang. And it’s an enterprise under the meaning of [RICO] . . . . As an enterprise, it a ffects interstate comm erce, and through its members it does engage in drug traf ficking. That’s their primary activity . . . . When anything threat ens that, they’ve been known to threaten and sometimes attack snitches. Murd er typically in the same vein, they’ll engage in murder of cooper ators or whoever else crosses them one way or the other. Id. at 639 (Trial Tr., Vol. 2, dated Mar. 2, 2021). In light of this concession, the government asked the district court to confirm directly with Mr. Ma rtinez that he agreed to his counsel’s de cision not to contest certain elements of the racketeering cons piracy charge. The court agreed, and explained to Mr. Martinez, personally: I told your counsel and told th e government that if you’ll not contest—because the government won’t stipulate to it; but if you’re not going to contest the enterprise, that SNM is an enterprise and that they commit racketeering acts and murder and witness-tampering and those sort of things—if they’re willing to not contest those, so they become sort of phantom issues in here; there are still issues the [g]overnment has to prove beyond a reasonable doubt, because they’re not stipulating to it. But if you’re willing to not contest that and fight those, and those are more phantom issues, then I’m going to put pressure on the government to cut the case down, not have as many murders in this case, not have as many racketeer ing activities. And I told [the government] they can have three mu rders and then there are at least some murders that will come up with individual witnesses. Id. at 648–49. Mr. Martinez confirmed that he understood and agreed with what his lawyer was doing. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3536 c. The District Court’s Clarification The next day, the government advised the district court that its first witness, Jerry Roark from the New Mexico Correcti ons Department, would “mention” but not discuss in detail the 2014 mu rder of Javier Molina, an individual killed at the hands of SNM, and an additional two murders dating back to 2001. Id. at 656. The government’s notice prompted Mr. Martinez to seek clarification as to the scope of the court’s Rule 403 ruling. Specifically , Mr. Martinez asked whether the court would allow “any witness . . . to talk about any murder that they participated in, and then the government could bring in the three additiona l murders[?]” Id. at 657. The court responded that it did not “want to h ear multiple witnesses on a [murder] unless it’s one of those three” that the government could use as racketeering evidence. Id. To the extent the government could discuss additional murders, the court advised that its witnesses’ testimony would be limited to “prov[ing] up . . . little murders to try to give some color” to other asp ects of the witness testimony. Id. Notably, however, the court prohibited the government from “prov[ing] [up] every [murder] . . . mentioned” by its witnesses. Id. Should the government soli cit “all the details about [the mentioned murder],” the court advi sed that it would be “receptive to an objection.” Id. at 658.
d. The Murder Testimony Mr. Martinez complained of enterpri se-murder testimony offered by the following witnesses: Mr. Ro ark, FBI Special Agent Bryan Acee, SNM-member Mario Rodriguez, and SNM- member Roy Martinez. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3637 i. Mr. Roark Mr. Roark first testified regarding the history of the SNM, during which he discussed a 2001 double murder at the Southern New Mexi co Correctional Facility and the 2014 murder of Javier Molina. A ccording to Mr. Roark, the double murder occurred on the same day and both victims were members of SNM. Mr. Roark also described the locations of the murders—pr ison cell blocks—befor e briefly discussing the 2014 murder of Javier Mo lina, another member of SNM. 6

6 Mr. Martinez did not contemporaneous ly object to this testimony. Immediately prior to the commencement of Mr. Roark’s direct examination, he sought “to clarify” the Court’ s Rule 403 ruling. R., Vol. 4, at 657. Mr. Martinez’s request for “clarification and then [his ] explicit decision not to object—upon receiving the . . . clarifying explanation—su ggests that [he] knew [he] had the right to object and intentionally chose to relinquish it.” In re Syngenta , 61 F.4th 1126, 1220 (10th Cir. 2023) (interna l quotations and alterations omitted). Nor does Mr. Martinez argue that his motion in limine pr eserved an objection to this testimony. See United States v. Bedford , 536 F.3d 1148, 1157 (10th Cir. 2008) (“A pretrial motion in limine to exclude evidence will not always preser ve an objection for appellate review.”) (quoting United States v. Mejia-Alarcon , 995 F.2d 982, 986 (10th Cir. 1993)). Any such argument would lik ely be unavailing. Though a “motion in limine may preserve an objection when the issue . . . can be finally decided in a pretrial hearing, and . . . is ruled upon without equivoca tion by the trial judge,” the district court neither finally nor unequivocally granted—or denied—Mr. Martinez’s Rule 403 motion. Bedford , 536 F.3d at 1157–58 (quoting Mejia-Alarcon , 995 F.2d at 986). Rather, in relevant pa rt, the court explained that it would have to evaluate Mr. Martinez’s 403 objections as th ey arose. Even if we assu me (without deciding) that Mr. Martinez’s conduct did not result in a waiver of objections to Mr. Roark’s testimony, and he only failed to preserve such objections through inadvertence—i.e., forfeited them, see, e.g. , In re Syngenta , 61 F.4th at 1180 (describing forfeited objections as being “t hought of as the product of ina dvertence or ignorance of a legal issue”)—Mr. Martinez does not argue plain error on appeal, though he cites to Mr. Roark’s testimony in his factual backgrou nd, and that failure is particularly problematic, if not fatal. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failur e to argue for plain error and its application on appeal . . . surely marks the end of th e road for an argument for reve rsal not first presented to the district court.”). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3738 As Mr. Roark explained, the 2001 doubl e murder prompted the New Mexico Department of Corrections to relocate cer tain SNM members, who were housed in the Southern New Mexico facility, to other prisons located in th e state and classify them as maximum-security threats under a sy stem first developed in the 1990s. The New Mexico Department of Corrections has re lied on that security threat system, and the threat-mitigation effort s implemented following the 2001 double murder, to counter SNM’s organizing efforts from within the state’s prison system. Importantly for our purposes, on cro ss-examination, however, Mr. Roark acknowledged that Mr. Martinez did not in any way participate in those murders.

Mr. Martinez’s failure to argue plain error is not limited to Mr. Roark’s testimony. As we note, infra , Mr. Martinez failed to ob ject to other portions of testimony he now argues on appeal prejudiced him. Notably, Mr. Martinez does not distinguish between the objected-to and un objected-to testimony in his Opening Brief, which fails to iden tify in his analysis section the specific testimony he contends unduly prejudiced him. See, e.g. , Aplt.’s Opening Br. at 36 (“The enterprise evidence was minimally probative and unfairly prejudici al.” (bold typeface omitted)). Ordinarily, Mr. Martinez would not be able to circumvent our plain error analysis by lumping together forfeited arguments stemming from unobjected-to testimony with preserved arguments re lated to objected-to testimony. Cf. Richison , 634 F.3d at 1131. Neverthele ss, the government failed to invoke our preservation doctrine, and thus waived any effective waiv er arising from Mr. Martinez’s failure to argue that his unpreserved errors satisf ied our rigorous plain error standard. See United States v. Rodebaugh , 798 F.3d 1281, 1306 (10th Cir. 2015) (finding that “the Government . . . clearly waiv ed . . . any objection to [appe llant’s] failure to preserve his lack-of-specific-fi ndings argument” where it “faile d to argue [that] [appellant] had not objected below and had not argued plain error in his opening brief”). Recognizing that we “are not obliged to apply forfeiture principles to the government’s briefing omission,” we di scern no reason to forgo reviewing Mr. Martinez’s Rule 403 cl aim on the merits. United States v. McGehee , 672 F.3d 860, 873 n.5 (10th Cir. 2012). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3839 And, as the government emphasized in its cl osing argument, the focus of Mr. Roark’s testimony was on explaining the development of “SNM’s classification within the Department of Corrections, [and] how they started a security threat group in the 1990s to gain intelligence and information about gangs in order to address the problems that the gangs were crea ting within the prison system.” Id. at 2771 (Trial Tr., Vol. 11, dated Mar. 15, 2021).
ii. Agent Acee The government then called FBI Special Agent Bryan Acee, one of the lead investigators of the cases against SNM. In itially, Agent Acee testified regarding the murders of Shane Dix; two murders co mmitted by alleged SNM member Edward Troup; and the murders of Rolando Garza, Frank Castillo, Fred Sanchez, and Adrian Burns. Mr. Martinez objected to Agent Acee’s testimony, citing Rule 403. The court sustained the objection, instructing the gove rnment to move on because “I think we got a flavor.” Id. at 731 (Test of FBI Special Agent Bryan Acee) (Trial Tr., Vol. 3, dated Mar. 3, 2021). Shortly thereafter, when Agent Acee began testifying again about his investigations into unrelated SNM murders, Mr. Martinez started to object, and the court instructed the government to finish its que stion but then “move on.” Id.
at 732. Later, however, the govern ment asked Agent Acee to identify SNM members from a photograph. In doing so, he noted which members were charged for certain crimes. Specifically, he id entified the following SNM members, who were either murdered, or charged with murder or assa ult: Leroy Lucero, murdered after testifying Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 3940 against other SNM members; SNM memb ers Joe Gallegos and Angel DeLeon, charged with murder; Mauric io Varela, charged with as sault; Daniel Sanchez, convicted of murder; Jerry Montoya, charged with murder; Rudy Salazar, involved in the murder of David Romero, which was th e murder charged in this case; Timothy Rodriguez, charged with murder; Roy Martin ez, charged with conspiracy to murder; Paul Rivera, charged with assaulting a witn ess; and Mario Rodriguez, charged with murder and later cooperated. 7 In addition, Agent Acee touched upon the Javier Molina murder. As he notes in his Open ing Brief, Mr. Martinez was not involved with any of these offenses, a fact th at came out on cross-examination. See Aplt.’s Opening Br. at 13.
iii. Mario Rodriguez Mr. Martinez renewed his Rule 403 objec tion regarding enterprise evidence as it applied to the government’s next enterpri se witness, Mario Rodriguez. In that objection, Mr. Martinez stated: We’ve now had testimony regarding seven murders from two witnesses. We spent cl ose to an entire day dealing with this. We’ve conceded that the SNM committed these murders. We made the concession that you asked for, Y our Honor. They’ve now had a former deputy director of Correc tions and an FBI agent take the stand talking about the murder of Javier Molina, the murder of Garza, Castillo, Sanchez, Shane Dix, Adrian Burns, and Robert Ortega. Talked about how they were committed by SNM members, how they were committe d by the SNM Gang as part of SNM activities. At this point, the testimony rega rding the enterp rise is just becoming cumulative and prejudici al. To now have [Mario

7 Mr. Martinez did not object to any of this testimony. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4041 Rodriguez] come [] and testify about the Javier Molina murder after two witnesses have alrea dy testified about it I think is unnecessary at this point, Your Ho nor. So, we would ask that Mr. Rodriguez’s testimony be limited to his knowledge related to this specific case, and then we m ove on from this enterprise [testimony.] It’s conceded, it’s getting cumulative, and frankly, at this point we’ve hit seven murd ers, as we’ve talked about previously, and it’s getting prejudicial, Your Honor. Id. at 888–89. The Court overruled the objection and allowed Mr. Rodriguez to testify regarding his participation in violent act ivities on behalf of SNM, including the murder of Javier Molina in a New Mexico prison. Mr. Rodriguez testified that he, along with several others, participated in the murder of Javier Molina; SNM wanted him dead over suspicions that he coopera ted with law enforcement. Among other details, Mr. Rodriguez shared that anot her SNM member, Daniel Sanchez, “called,” i.e., “order[ed],” the murder. Id. at 917, 919. And, critically , he testified that he had “no choice” but to follow Daniel Sanch ez’s order because, in SNM, “you [follow orders] or you end up getting killed in the process.” Id. at 923.
iv. Roy Martinez Mr. Martinez prophylactically renewed hi s Rule 403 objection prior to Roy Martinez, another SNM-member-turned-witn ess, taking the stand. The government intended for Roy Martinez to testify about two additional murders, as well as a conspiracy involving Mr. Martinez (i.e., the defendant-appellant ) to traffic drugs within the prison system. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4142 When soliciting testimony as to Roy Martinez’s criminal history, the government asked him what he had pleaded guilty to; Roy Martinez answered that he “ordered a hit on Gregg Marcantel and Sa ntistevan,” two offi cers within the New Mexico Department of Corrections. Id. at 970. Mr. Martinez objected, noting that the hits had not been “carri ed out” and that the identi ties of the two correctional officers were “highly prejudicial.” Id. at 971. He further ar gued that the evidence as to SNM’s acts of violence against correctional office rs was well-established. The district court disagreed—at least in part. In its view, the background information to which Roy Martinez test ified was important to building the government’s witness-tampering case agai nst Mr. Martinez because Roy Martinez disseminated his orders via a letter addressed to Mr. Martin ez. In that regard, the court observed that the evidence “show[ed] the link between Mr . Martinez and the SNM and the fact that they would trust hi m with such an impor tant assignment.” Id. at 972. Nevertheless, the court partially sustained Mr. Martinez’ s objection, allowing the government to only ask about the lette r and that Mr. Martin ez never received it. e. The Limiting Instruction Mr. Martinez filed a proposed limiting in struction to stymie any prejudice attending to the witnesses’ testimony. After some discussion and edits from the parties, the district court gave that instruction, stating: You have now heard testimon y regarding other crimes, wrongs, or acts that were alle gedly committed by Mr. Martinez’s alleged associates in the SNM. You may consider this evidence solely for the purpose of determ ining whether the SNM is an enterprise engaged in racketee ring activity, and whether and how Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4243 the SNM’s racketeering acts tended to form patterns of racketeering activity. These acts also may th emselves constitute a pattern or several patterns of rack eteering activity. I will note that Mr. Martinez, in his opening argum ent, conceded that the SNM was an enterprise affecting inters tate commerce, and that the SNM engages in racketeering acts. Such acts are not admissible to prove a person’s character in order to show that on a partic ular occasion the person acted in accordance with the character. Y ou may not consider the bad acts of an SNM member for the purpose of drawing the inference that if Mr. Martinez associat ed with such individuals, he must have a criminal character and must have committed the crimes charged. You also may not consider the alleged bad acts of Mr. Martinez himself for the purpose of drawing the inference that Mr. Martinez’s bad acts in the past mean that he is a person of criminal or otherwise bad character and that it is thus more likely that he committed the crimes charged in th is case. For the limited purpose for which this eviden ce has been received, you may give it such weight as you feel it deserves. You may not, howe ver, use this evidence for any other purpose not specifically mentioned. Id ., Vol. 4, at 2689–90.
2. Legal Framework Under Rule 403 of the Federal Rules of Ev idence, district courts must conduct a balancing test to assess whether a piece of evidence’s “probative value is substantially outweighed by [the] danger of . . . unfair prejudice.” F ED

. R. E VID . 403. In this context, “unfair prejudice” means “an undue tendency to suggest [a] decision on an improper basis, commonly, though no t necessarily, an emotional one.” United States v. Silva , 889 F.3d 704, 712 (10th Cir. 2018) (alteration in original) (quoting
F ED

. R. E VID

. 403 advisory committee note to 1972 pr oposed rules). “[A]s to a criminal defendant, [it] speak s to the capacity of some concededly relevant evidence Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4344 to lure the factfinder into declaring guilt on a ground differe nt from proof specific to the offense charged.” Old Chief v. United States , 519 U.S. 172, 18 0 (1997). “In deciding whether to exclude evidence under Rule 403, ‘considera tion should be given to the probable effectiveness or lack of ef fectiveness of a limit ing instruction” and ‘[t]he availability of other means of proof.’” Silva , 889 F.3d at 712 (alteration in original) (quoting F ED

. R. E VID . 403 advisory committee note to 1972 proposed rules). “The district court has considerable discretion in performing the Rule 403 balancing test,” but “exclusion of evid ence under Rule 403 that is otherwise admissible under the other rules ‘is an ex traordinary remedy and should be used sparingly.’” United States v. Tan , 254 F.3d 1204, 1211 (10th Cir. 2001) (quoting United States v. Rodriguez , 192 F.3d 946, 949 ( 10th Cir. 1999)). The district court need not expressly state whether “the pr obative value of the evidence substantially outweighed its potenti al for unfair prejudice” where “t h[ose] determinations are supported by the record.” United States v. Lazcano-Villalobos , 175 F.3d 838, 846 (10th Cir. 1999). Finally, “our law favors admission of all relevant evidence not otherwise proscribed.” United States v. Irving , 665 F.3d 1184, 1213 (10th Cir. 2011).
3. Analysis Mr. Martinez argues that “the balance tipped so sharply towards exclusion following [his] concession that the SNM was a criminal enterprise [] that the district court’s admission of [the ente rprise murder] evid ence was an abuse of discretion.” Aplt.’s Opening Br. at 36. That is, “b ecause Mr. Martinez conceded that the SNM Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4445 was a racketeering enterprise that engaged in racketeering activi ties such as murder, . . . the evidence of other murders . . . by the SNM had no probative value” and was severely prejudicial. Id. at 37. We disagree and conclude th at the district court did not abuse its discretion for two reasons. First, the enterprise-murde r evidence had important probative value by showing that SNM used violence to main tain and augment organizational respect; such evidence played a cr itical role in establis hing the government’s case on elements Mr. Martinez did contest , including his participation in the murder of David Romero. Second, with the assistance of a limiting instruction, this probative value exceeded any unfair prejudice.

a. Probative Value Mr. Martinez argues that the evidence l acked probative value for two reasons. First, he reasons that his tr ial revolved around whether he “participated in the [David] Romero murder, and other racketeering activ ity, . . . not . . . whether the SNM was a racketeering enterprise in general.” Id. at 38–39. So, Mr. Martinez maintains that his concession of the enterprise element significantly dimini shed the probative value of the evidence. In furthe ring this argument, he invokes our decisions in United States v. Becker , 230 F.3d 1224 (10th Cir. 2000), abrogated in part on other grounds by Crawford v. Washington , 541 U.S. 36 (2004), United States v. Soundingsides , 820 F.2d 1232 (10th Cir. 1987), and United States v. Edwards , 540 F.3d 1156 (10th Cir. 2008)—as well as a Tenth Ci rcuit panel’s decision in United States v. Moncayo , 440 Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4546 F. App’x 647 (10th Cir. 2011)—for the pr oposition that a defenda nt’s concession of an element deprives evidence concerning th at element of its probative value. Second, and relatedly, Mr. Martinez argue s that the enterpri se murder evidence was “wholly separate and distinct from the [David] Romero murder charged in this case.” Aplt.’s Opening Br. at 38

. In that regard, many of the murders occu rred either several years before or after the 2008 murd er of David Romero. Thus, Mr. Martinez urges that these murders “h ardly” established that “the SNM was engaged in racketeering activity in 2008— or, for that matter, that Mr . Martinez was active in the SNM in 2001 or 2014,” when some of the murders took place. Id. That is, in Mr. Martinez’s view, th e murders were so temporally disconnected from his alleged murder of David Romero that they lacked probative force concerning the elements of that alleged murder. For its part, the government emphasizes that none of these cases that Mr. Martinez cites involved racketeering char ges. Moreover, th e government responds that the jury “had to find th at [SNM] had three structural features: (1) a purpose; (2) relationships among those associated with th e enterprise; and (3) longevity sufficient to permit [its] associ ates to pursue the en terprise’s purpose,” in addition to finding that SNM “engaged in multiple acts of ra cketeering activity consisting of murder, obstruction of justice or witn ess tampering, or drug traffi cking.” Aplee.’s Resp. Br. at 29 (internal quotations omitted). To that end, the government c ontends that “[t]he evidence of violent acts committed by SN M members was strong proof of these elements” because, by showing “that me mbers had committed murders on SNM’s Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4647 behalf,” the evidence “show ed that [SNM] was engaged in murder, one of the specific racketeering ac tivities alleged.” Id. at 30. Likewise, “evidence that SNM members followed orders . . . went towa rds establishing the SNM’s leadership structure and rules, and thus its existence as an enterprise.” Id. And, of course, the government also ha d to prove that Mr. Martinez “murdered [Mr.] Romero ‘to maintain or increase his position in’ . . . the SNM,” and “[t]he evidence of SNM’s violen t acts helped to establish that violence is essential to one’s status in the gang.” Id. at 31 (quoting Supp. R., Vol. 1, at 59 (Court’s Final Jury Instr. No. 30)). The government posits that the evidence show ing that the “SNM expected acts of disrespect to be puni shed severely” helped explain why Mr. Martinez “would believe that punishing [Mr. ] Romero’s disrespect would enhance his own standing” in the gang. Id. Because Mr. Martinez disput ed “his intent to advance his position in [SNM],” the government ar gues that the disputed evidence was relevant beyond the paramete rs of establishing SNM as a violent enterprise. Id. After carefully studying Mr. Martinez’s arguments and the caselaw he relies on, we conclude that the gove rnment has the better of this dispute. For starters, generally, a defendant cannot deprive the gove rnment of the opportunity to present a rich, nuanced case establishing guilt by offering abstract concessions and stipulations. In that re gard, the enterprise murder evidence could be—and was— probative across multiple vectors. None of the cases on which Mr. Martinez relies state otherwise. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4748 Relatedly, insofar as Mr. Martinez ar gues that his concession categorically prohibited the government from introducing ente rprise murder evidence, “a criminal defendant may not stipulate or admit his way out of the full eviden tiary force of [his]
case.” Old Chief , 519 U.S. at 186. Accordingly, we are “general[ly] reluctan[t] to tell the government how to prove a part icular element,” and have limited the introduction of evidence “in the face of a st ipulation only when the element involves the defendant’s status as a convicted felon.” United States v. Herrera , 51 F.4th 1226, 1256 (10th Cir. 2022). Old Chief ’s limiting principles are strongly at play here, where “a piece of evidence may address any number of separate elements, stri king hard just because it shows so much at once.” 519 U.S. at 187. The multifunctional value of the evidence at issue in this case is a well-recognized feature of racketeering conspiracy cases generally. See, e.g. , United States v. Turkette , 452 U.S. 576, 583 ( 1981) (recognizing that “proof used to establis h . . . separate [RICO] elemen ts may in particular cases coalesce”); United States v. Hutchinson , 573 F.3d 1011, 1021 (10th Cir. 2009) (“[E]vidence used to prove the pattern of racketeeri ng activity and the evidence establishing an enterprise ‘may in particular cases coalesce.’” (quoting Boyle v. United States , 556 U.S. 938, 947 (2009)); cf. Boyle , 556 U.S. at 947 (“[I]f [a jury instruction] is used to mean that the existence of an enterprise may never be inferred from the evidence showing that persons associated with th e enterprise engaged in a pattern of racketeering activity, it is incorrect .” (emphasis added)). Furthermore, contrary to Mr. Martinez’s argument that the enterprise murder evidence’s probative Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4849 value was limited to whether the “SNM was a racketeering enterpri se that engaged in racketeering activities such as murder, witness intimidation, and drug tracking”—and those were matters that he already had conceded—the enterpri se murder evidence presented at trial could (and did) apply to elements that Mr. Martinez disputed. 8 Aplt.’s Opening Br. at 37. Central to the government’s case agai nst Mr. Martinez was the importance of respect and the use of violen ce to acquire—and maintain—it. In SNM, “respect” is the central marker of “statu s”—and “status” accords valuab le benefits, like access to drugs. R., Vol. 4, at 897. And, more specifically as it relate s to the government’s burden, as the government urged during its closing argument, “to understand what happened to David Romero, to understand what happened to Donald Salazar, . . . you have to understand how it is that the SNM operates.” Id. at 2774–75. That is, “[y]ou have to understand that respect is ever ything,” including life and death, and that murder is how respect is maintained. Id.

8 The VICAR and racketeering conspi racy statutes are substantially similar and define “enterpr ise” the same way: “any pa rtnership, corporation, association, or other legal entity, and any un ion or group of indivi duals associated in fact although not a legal entity.” The onl y difference is that VICAR includes an interstate commerce requirement within th e definition of enterp rise, whereas RICO places that element within each substantive provision. Compare 18 U.S.C. § 1959(b)(2) with 18 U.S.C. §§ 1961(4), 19 62(a)–(c). Due to their substantial overlap, the Supreme Court’s observation that proof of a RICO enterprise may “coalesce” with proof of other RICO elements supports the proposition that enterprise evidence may have a similarly coalescent effect here as to the VICAR charge. Turkette , 452 U.S. at 583. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 4950 SNM’s trail of bloodshed—even presen ted in a limited fashion as here— offered valuable context as to why Mr. Ma rtinez would murder his cousin over a bag of heroin and shoot Donald Salazar over se emingly childish trash talk. And, because those facts were contested, the district court di d not abuse its discretion when concluding that Mr. Martinez ’s “explicit[] and unambigu ous[] conce[ssion] before the jury” that SNM is a violen t racketeering enterprise di d not deprive the enterprise murder evidence of its probative wo rth. Aplt.’s Reply Br. at 9. The government not only showed the role “respect” a nd its counterpart, “disrespect,” had in augmenting or undercutti ng a member’s status, but also its role in maintaining organizational power from within and without the prison system. See,

e.g. , id. at 2060 (Billy Cordova testifying: “T hat means when you disrespect one carnal, you disrespect all of us. It’s more about not only looking weak but even people thinking that we’re weak. We try to keep our status by instilling fear in other people. So, if you move on one of us, we move back on you.”) . In establishing respect as SNM’s chief curren cy, the government also demons trated that, in SNM, to tolerate disrespect is to risk so cial bankruptcy and even death. See, e.g. , id. at 897 (Mario Rodriguez testifying: “If you’re disr espected . . . [from] even within, if you don’t do something about it . . . . [y] ou pretty much get knocked off.”). Violence, then, became SNM’s go-to tool to secure respect—and thus power— over people in the prisons and on the street s. Recall that Mari o Rodriguez testified that SNM “expected” new entrants “to con tinue to live up to the history of the organization, the violence.” Id. at 895. To that end, according to him, SNM Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5051 expected its members to “kill” law enforcement coop erators, among others. Id. at 893. With this background in mind, another witness, Roy Martinez, explained that he participated in the murder of Javier Molina because SNM suspected that Javier Molina cooperated with law enforcement. However, echoing the comments of SN M member Mario Rodriguez, Roy Martinez also stressed that, though SNM rewa rded carnals who murd ered its enemies, a carnal’s failure to follow orders would result in his own death. See id. at 923 (testifying that SNM members “had no c hoice” but to follow orders because the failure to follow orders would “get [] [one] killed in the process”); see also id. at 950 ( testifying that he “killed fo r the SNM” to “become a leader ,” and that the failure to follow orders would result in a member’s own death). Likewise, Agent Acee’s brief testimony regarding the many murders attribut ed to SNM members gave the jurors a flavor of the exceptional body count resu lting from SNM’s systematic exercise of violence to maintain power. Lastly, it would have been odd for the government to delve into the organizational dynamics and social more s of SNM without substantively—as opposed to abstractly—establish ing that it was an organizat ion in the first place. To that end, Mr. Roark’s (unobjected-to) te stimony regarding th e 2001 double murder and Mr. Molina’s murder—as well as Ag ent Acee’s testimony regarding the government’s efforts to id entify cooperators and the difficulties plaguing their investigations of SNM—gave “descriptive [ly] rich[]” glimpses of SNM as an organization—including its scale, power , and influence—in a way that Mr. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5152 Martinez’s abstract c oncession could not. Old Chief , 519 U.S. at 187; see R., Vol. 4, at 713–714 (Agent Acee testifying that the government was able to prove the cold case murder of Shane Dix after a SNM member began cooperating); id. at 728–29 (testifying that the government was unable to prove two prison murders at the hands of SNM member Edward Troup un til long after his release). In advising that the enterprise murder testimony was necessary “to give some color” to the prosecution’s case over elemen ts Mr. Martinez continued to contest, id. at 657, the district court im plicitly recognized that th e evidence had “force beyond any linear scheme of reasoning,” Old Chief , 519 U

. S. at 187. Such a recognition is entirely consistent with the Supreme Court’ s observation that evid ence of a conceded issue may still be necessary to “tell[] a colorful story w ith descriptive richness.” Id

. Put differently, giving the enterprise murder evidence at issue here its “maximum reasonable probative force,” Herrera , 51 F.4th at 1262, added critical context to the VICAR and felon-in-posse ssion charges levied against Mr. Martinez. 9 The government had to expl ain why Mr. Martinez felt mo tivated to kill his cousin, Mr. Romero, over a stolen bag of heroin and shoot Donald Salazar over his postprison bravado. Coupling the body count with evidence that slights reflected both an existential threat to a me mber’s place in the organizat ion and an opportunity—if

9 Mr. Martinez does not contest on a ppeal that the government had the right to proffer evidence as it related to his motive to murd er Mr. Romero. In failing to do so, he waived any argument that the enterprise murd er evidence was not probative as to that element. See Sawyers v. Norton , 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed abandoned or waived.” (quoting Tran v. Trs. of State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Cir. 2004))). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5253 responded to violently—for advancement, helped the jury un derstand the motives behind Mr. Martinez’s charged conduct. As such, we could hard ly call the evidence “inconsequential.” Soundingsides , 820 F.2d at 1237. None of the cases that Mr. Martinez cite s undercut this conclusion. None of them arise in the racketee ring context where evidence may serve multiple purposes and not just operate to prove discrete elemen ts. Furthermore, in most of the cases he cites, the evidence was marsha lled with regard to elem ents that were not even disputed. Start with Becker , where we held that evidence of prior bad acts— viz. , drug crimes—had little probative va lue where they occurred fou r-to-six years before, and bore only facial similarity to, Mr. Becker’s current drug charges. See 230 F.3d at 1232–33. More specifically , in that case, the governme nt sought admission of Mr. Becker’s conviction to s how motive and intent. See id. at 1232. Over Mr. Becker’s objection, the district court admitted evid ence of Mr. Becker’s prior adjudication— specifically, his guilty plea—as a drug deal er under Federal Rule of Evidence 404(b). See id. at 1232–33. On appeal, we reviewed the evidence’s relevance ag ainst our longstanding rule that “prior narcotics involv ement is relevant when that conduct is ‘close in time, highly probative, and similar to the activity with which th e defendant is charged.’” Id. at 1232 (quoting United States v. Wilson , 107 F.3d 774, 785 (10th Cir. 1997), abrogated on other grou nds as recognized by United States v. King , 632 F.3d 646, 651–52 & n.5 (10th Ci r. 2011)). Mr. Becker’s guilty plea, which “preceded the Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5354 incident [giving rise to hi s federal prosecution] by approxi mately six years,” fell far outside the scope of the Rule 404(b) exception. Id. Accordingly, we found that “the relevance of [Mr.] Becker’s prior convictions [was] unde rmined by the length of time between the prior acts and the conduct i nvolved in the instant convictions.” Id. In addition, we concluded that the “bare evidence” of Mr. Beck er’s guilty plea—as opposed to evidence of “the underly ing factual circumstances”—precluded a comparison of his prior and present charges. Id. at 1233. Consequently, we could not say that the evidence of th e prior charge was relevant and, furthermore, could not conclude that the prior bad act was more probative than prejudicial. See id. Soundingsides also considered the relevance of prior bad acts evidence in the context of a charge of second-degree murder. See 820 F.2d at 1236–37. There, we concluded that the district court abused its discreti on when it admitted testimony from Mr. Soundingsides’s ex-girlfriend of the daily beatings she endured at his hands—including one resulting in her misca rrying a baby—from five years prior to the alleged murder. See id. at 1237. The government s ought to use the evidence to prove malice aforethought—an elemen t of the charged offense. See id. at 1236. However, notably, that was not an element that Mr. Soundingsides put at issue. See id. at 1237. We determined that the testimony lacked probative value because Mr. Soundingsides never raised “intent” as a defense and reasoned that the government could have proved malice af orethought from other sour ces of evidence, namely photographs of the crime scene and expe rt testimony that a struggle occurred. Id. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5455 Accordingly, we concluded that “the in cremental probative valu e of the extrinsic offense is inconsequential when compared to its prej udice” where “the defendant’s intent is not contested.” Id. Similarly, in Edwards , a drug distribution case, we concluded that the district court abused its discretion when it admitte d evidence of the defendant’s prior drug convictions to prove a que stion not in issue. See 540 F.3d at 1163. We found that the evidence, consisting of convictions for possessing sm all quantities of cocaine and marijuana, was irrelevant fo r the government’s “purporte d purpose[]” of establishing “lack of mistake”—a question that “was never an issue [in] th[e] case.” Id. Compounding matters further, we also determined that th e dissimilarity between the prior convictions and the present charges undermined their relevance in Mr. Edward’s prosecution. See id. (“Likewise, we are unable to discern how evidence that [Mr. Edwards] possessed personal-us age amounts of controlled substances [was] relevant to show that he intended to distribute narcot ics in the instant case.”). A panel of our court exhib ited similar concerns in Moncayo , where it concluded that “[t]he minima l relevance” attending to an officer’s testimony of the defendant’s prior drug activity was “significantly diminish ed by the fact that [the officer’s] testimony was releva nt only to an undisputed el ement of the case.” 440 F. App’x at 654. The officer testified that, in the year before the in cidents giving rise to the federal prosecution, the officer ha d observed Mr. Moncayo drop an object— ultimately determined to be a clear pl astic bag containing several baggies of cocaine—into the engine block of a car. See id. at 651. The government urged that Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5556 the testimony tended to show Mr. Moncayo’s intent regarding the charged offenses. See id. at 652. Disagreeing, the panel foun d that “factual differences between the prior 2007 incident and the 2008 charge s . . . undermine[d] the government’s argument that the 2007 incident was relevant to establish [Mr.] M oncayo’s intent to distribute.” Id. at 653. In fact, the evidence’s “only . . . proba tive value” went to two issues that Mr. Moncayo “did not dispute” —“quantity” and “tools of the drug trade.” Id. at 654. As pertinent here, what all of th ese cases have in common is that none arise “in a racketeering [context] in which th e government was required to prove an enterprise and a defendant’s purpose in committing the crime. ” Aplee.’s Resp. Br. at 34. Yet, that context is of critical im portance to our assessm ent of the challenged evidence’s probative value. Moreover, ea ch of these cases involved relevance determinations based on discrete issues, which most often were not even in dispute. Here, by contrast, the enterprise murder ev idence’s probative value is not siloed to the discrete issue of SNM’s stat us as an enterprise or its history of racketeering acts. Rather, as explained supra , it bears on other issues that Mr. Martinez contested at trial. Specifically, the racketeering context place s into full view the nature of Mr. Martinez’s misplaced reliance on Becker , Soundingsides , Edwards , and Moncayo

. Unlike the years’ old drug convictions at issue in Becker , evidence of SNM’s long history of violence from within and with out the prison system was not used to “impermissibly establish[] [Mr. Martin ez’s] propensity to commit the crimes Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5657 charged,” Becker , 230 F.3d at 1232, but rather to demonstrate the gang’s tried-andtrue use of violence—notably, through murder s—to maintain “status by instilling fear in other people” and the prom otional opportunitie s that came through killing. R., Vol. 4, at 2060. Soundingsides also is distinguishable on that basis. And, even further, it is distinguishable because Mr. Martinez’s “int ent to advance his position in the gang”—an element of his VICAR charge—w as disputed. Aplee.’s Resp. Br. at 31; cf. Tan , 254 at 1209 (“ Soundingsides is distinguishable fro m this case. Most important, intent is at i ssue here.”). So too with Edwards and Moncayo

. In sum, as Old Chief instructs, “[a] syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evid ence that would be used to prove it.” 519 U.S. at 189. Acco rdingly, Mr. Martinez is wrong to suggest that his concession functioned as a firewall against the ad mission of other enterprise and racketeering evidence. Moreover, the enterprise murder testimony had probative value. Thus, the only way that the district court could have abused its discretion here would be if the evidence’s prejudicial ef fects substantially out weighed its probative value. But, as discussed infra , that was not so.
b. Prejudicial Effect The district court did not abuse its di scretion because the probative value of the contested evidence was not outweighe d—let alone substan tially outweighed—by the danger of any unfair prejudice stemmi ng from that evidence. Mr. Martinez argues that the evidence was unfairly prejudicial because it could “lure the [jury] into declaring guilt by generalizing another’s guilt, the association w ith which becomes a Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5758 bad character trait that made Mr. Mart inez more likely to commit the charged offenses.” Aplt.’s Opening Br

. at 40. He reasons that the risk the jury would use guilty-by-association to find him guilty for “his alleged involvement in the Romero murder, witness intimidation, and being a felon-in-possession of a firearm” was “exceptionally high” considering the enterpri se murder evidence, which established that Mr. Martinez’s compatriots enga ged in similar criminal conduct. Id. ; see also Aplt.’s Reply Br. at 10 (arguing that the “RICO statute has . . . tremendous potential for guilt by association” and that the enterp rise evidence was prej udicial because “in no way did it connect [him] to the enterprise” (quoting United States v. Flynn , 852 F.2d 1045, 1054 (8th Cir. 1988))). The government responds th at “SNM’s other violent act s carried a low risk of unfair prejudice to [Mr.] Martin ez” for three reasons. Aplee.’s Resp. Br. at 34. First, “the enterprise evidence about which [M r. Martinez] complains involved crimes committed by other SNM members,” and Mr. Ma rtinez “was not implicated in any of them.” Id. Second, the “details about the othe r crimes were generally sparse” and did not overpower the “violent and distur bing” testimony concerning the murder of Mr. Romero, which Mr. Martinez himsel f placed at the center of trial. Id. ; accord Aplt.’s Opening Br. at 38 (arguing that “t his trial was entirely about whether [he] participated in the Romero murder, and other racketeering activity, in particular”). Third, and finally, the court supplied a limiting instruction directing the jury to not “infer [Mr.] Martinez’s gu ilt from the bad acts of othe r SNM members.” Aplee.’s Resp. Br. at 35. We ag ree with the government. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5859 We conclude that any potential unf air prejudice did not “substantially outweigh the probative value” of the enterp rise murder eviden ce such that the evidence might be “excluded under Rule 403.” United States v. Archuleta , 737 F.3d 1287, 1293 (10th Ci r. 2013) (quoting Irving , 665 F.3d at 1213–14). As we said in
Herrera , “given the nature of th is violence infested case,” there is “no reason why testimony about an additional murder woul d cause the jury an improper emotional reaction.” 51 F.4t h at 1260 (quoting United States v. Cruz-Ramos , 987 F.3d 27, 43 (1st Cir. 2021)). This is especially so considering that Mr. Roark’s and Agent Acee’s testimony involved only a cursory review of the murders and did not link them to Mr. Martinez. See, e.g. , R., Vol. 4, at 689–90 (Jerry Roar k testifying that Mr. Martinez was not involved in SNM-rela ted prison murders he refere nced in his testimony); id. at 840 (Agent Acee testifying that Mr. Martin ez was not involved in the murder of an SNM member who cooperated with law enforcement). Moreover, the district court instructed the jury that it could not infer Mr. Martinez’s guilt from the bad acts of other SNM members. And, as we have said, “[e]ven if actual prejudice exis ts, the court can often cure the prejudice through ‘less dramatic measures, such as limiting instructions.’” Herrera , 51 F.4th at 1273 (quoting Zafiro v. United States , 506 U.S. 534, 539 (1993)). We generally “presume th at juries follow limiting instructions,” and Mr. Martinez certainly points to no evidence that the jurors disregarded the instructions here. United States v. Jones , 530 F.3d 1292, 1303 (10t h Cir. 2008) (alteration omitted) (quoting United States v. Lane , 883 F.2d 1484, 1498 (10th Cir. 1989)); see Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 5960 Jones , 530 F.3d at 1303 (presuming that juro rs followed the limiting instruction where there was “no reason to conclude th at the jury did not follow the court’s limiting instruction”). Indeed, the jury here heard evidence that SNM routinely intimidated witnesses (anot her fact Mr. Martinez c onceded) but nevertheless acquitted Mr. Martinez of the witness intimidation charge . As we acknowledged in
Herrera , that “acquittal suggests that the jury could fo llow the instructions by compartmentalizing the eviden ce.” 51 F.4th at 1266 n.11. Thus, absent any evidence to the contrary, we presume that the lim iting instruction here served to cure any unfair prejudice. As such, we conclude that any unfa ir prejudice stemming from the district court’s admission of certain enterprise murder evidence did not outweigh—let alone substantially outweigh—the evidence’s proba tive value. Therefore, we uphold the district court’s judgment in the face of Mr. Martinez ’s Rule 403 challenge.
C. The Recusal Issue We now turn to the final is sue in this case: whether th e presiding district court judge—Judge Browning—abused his discreti on in declining to grant a new trial because of Mr. Martinez’s involveme nt in SNM’s threats against him. 10 After

10 To be clear, as it rela tes to this recusal issue, when the district court judge and the parties refer to threats ag ainst “the Court,” they appear to be universally referring to threats of pe rsonal harm against Judge Browning, who presided over Mr. Martinez’s tria l. In a related vein, when we refer in this part of the opinion to the “district court judge” or “judg e” or linguistic variants thereof, we also are referring to Judge Browning. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6061 reviewing the relevant factual backgrou nd and applicable legal framework, we conclude that the district court judge did not abuse his discretion.
1. Factual and Procedural Background

a. Agent Acee’s Testimony The recusal issue sp rings from Agent Acee’s testim ony involving arrests he made during the morning of trial. Specifica lly, at the end of dir ect examination, the government and Agent Acee had the following exchange: The government: And in terms of the gang being alive and well, you mentioned arresti ng somebody earlier, in recent weeks, with 30 pounds of methamphetamine. Di d you arrest anybody even this morning before court who were SNM gang members? Agent Acee: I arrested f our SNM gang members this morning and one two days ago. The government: And did you lo cate any evidence of crime in relation to those arrests? Agent Acee: Yes. The one tw o days ago, I recovered a loaded firearm. A nd this morning we recovered four guns and methamphetamine and heroin. R., Vol. 4, at 809. Following this testimony, defense couns el asked to approach and requested discovery related to those re cent arrests. Coun sel also asked whether the government was contending that the arrests were re lated to Mr. Martinez. The government responded by saying: Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6162 No, they have nothing to do wi th the defendant, and I have no objection to him asking a little about it. Well, the stuff this morning relates to this case, but not directly to the defendant. It relates to threats agains t a witness, and I didn’t want to bring that out in front of the jury. Id. at 810; see also id. at 811 (“Mr. Martinez: And the f our arrests are all related to witness intimidation? The govern ment: It [sic] tends to be. We’re looking at that.”). By way of discovery, the government then s upplied Mr. Martinez with a ninety-eightpage sealed affidavit signed by Agent Acee relate d to the arrests. Later, on cross examination, defens e counsel asked Agent Acee: “You had mentioned a plot to kill FBI agents and prosecutors .” Id. at 834 (emphases added). Agent Acee responded in the affirmative a nd then testified that Mr. Martinez was involved in two such threats. At this juncture, Agent Acee had not discussed any threats or plots against any judge—let alone the presiding district court judge. However, near the end of cross-examin ation, defense counsel and Agent Acee had the following exchange: Mr. Martinez: [S]o, . . . I just wanted to go and . . . close off the threats against FBI agents and prosecutors, just for completeness. I think there was a judge’s name . . . float[ing] [in] one of those [threats]; is th at correct?” Agent Acee: Yes. Mr. Martinez: Nobody was actually killed orattacked arising from those threats; correct? Agent Acee: Not yet. I do n’t know that they’re over. Mr. Martinez: Not yet? Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6263 Agent Acee: It took them two y ears to get [a murder victim].

. . . . Mr. Martinez: Are ther e any charges arising from the threats against FBI agents, prosecutors ? Agent Acee: I arrested f our people this morning. Mr. Martinez: And obviously, none of that stuff has been produced to the defense? Agent Acee: I haven’t even wr itten a report yet. I came here. I changed clothes and came here. Id. at 842–43 (emphases added).
b. The Arrest Warrant Affidavit As noted, the government disclosed a search warrant affidavit to Mr. Martinez. Ninety-eight pages long, the affidavit de tailed threats that SNM members issued against federal law enforcem ent officers, federal prosec utors, and the presiding district court judge. See, e.g. , id. , Vol. 2, at 82–83 (Def.’ s Sealed Mot. for a New Trial, filed Apr. 13, 2021) (hereinafter the “Rule 33 Motion”) (noting that the affidavit provided that “[o] ver the past several weeks, case agents have become aware of numerous threats aimed at govern ment witnesses, federal prosecutors, FBI agents, and the presiding ju dge in the United States’ ca se against the SNM”). As revealed in the affidavit’s averme nts, Mr. Martinez was not the principal target of the FBI’s investig ation. In fact, his name came up only at the end of the affidavit in two paragraphs. However, th e affidavit stated th at Mr. Martinez and others “discuss[ed] putting a green light on ‘[Agent] Acee, [Assistant U.S. Attorney] Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6364 Armijo, and [Judge] Browning,’ and lighting up the courtroom when the case(s) went to trial.” Id. at 83.

c. Mr. Martinez Moves for a Mistrial During trial, and after reviewing the affidavit, Mr. Martinez moved for a mistrial—notably, not based on any recusal issue but, rather, based on the government’s alleged failure to timely disclose information. See R., Vol. 4, at 859 (“Mr. Martinez is . . . moving for a mistrial . . . based on the failure to disclose the information that Agent Acee testified to an d was elicited on cross about the [arrests of SNM members] that happened this morni ng.”). The district court judge denied Mr. Martinez’s motion without prejudice. Mr. Martinez does not challenge this ruling on appeal. Though Mr. Martinez did not raise a recu sal concern in his oral motion for a mistrial, his argument on appeal relies exte nsively on his oral motion and the issues he raised therein. See Aplt.’s Opening Br. at 20 (argui ng that his oral motion for a mistrial “made clear that, based upon Agent Acee’s testim ony, the discovery provided to Mr. Martinez, and the search warrant affidavit, that Mr. Martinez was allegedly involved in threats against the Cour t”). In particular, he claims that the following defense argument put the district court judge on notice that Mr . Martinez had made threats ag ainst him: Special Agent Acee testified that the Government was in possession of information regardi ng alleged threats that happened when Mr. Martinez was incarcerated in Santa Fe. It’s been more than a year since he wa s incarcerated in Santa Fe . It certainly lends Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6465 credence to the fact that the gove rnment has had this information before this morning. And also, Your Honor, as I st ated—and we can enter it into the record, if you’d like—we did receive a 302 in discovery in February, last month, dated Janua ry 19, 2021, where Special Agent Stemo stated that she was listeni ng to recordings. Now, she does not say that they’re investigating threats. All she states is—and this is a quote—“It does not appear that any information pertaining to hits on AUSA Maria Armijo, SA Bryan Acee, or Judge Browning was exchanged duri ng these interactions.” The Government knew that thes e [threats] existed. The Government was investigating it, but made no disclosure prior to Special Agent Acee testifying in this trial. That’s prejudicial. We obviously would have approached th is very differently. All of the instances of what is disclosed in trial and what is disclosed in discovery of any alleged threats ag ainst the Court, the FBI agents, or the federal prosecutors in this case don’t mention Mr. Martinez whatsoever . They [only] refer to prior threats from prior trials . . .

. R., Vol. 4, at 861–62 (Trial Tr., Vol. 3, dated Mar. 3, 2021) (emphasis added). As noted, the district court judge denied his motion.
d. Mr. Martinez’s Motion for a New Trial Following the jury’s verdic t, Mr. Martinez moved for a new trial under Federal Rule of Criminal Procedure 33. In his motion, Mr. Martinez claimed that he was entitled to a new trial because the district court judge failed to recuse himself after he heard testimony and argumen t, and reviewed a writte n affidavit detailing Mr. Martinez’s alleged threats against him. More specifically, Mr. Mart inez claimed that “during trial, it came to the Court’s attention that Special Agent Acee applied for a sear ch warrant and stated in that warrant that he ‘is aw are certain members of the ga ng [SNM] have advocated for Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6566 FBI agents, federal prosecutors, and th e presiding judge to be harmed.’” Id ., Vol. 2, at 148 (Def.’s Sealed Reply to the Gov.’s S ealed Resp. to Def.’s Sealed Mot. for New Trial, filed Jun. 1, 2021) (quoting the Acee A ff.). Thus, based on the contents of the search warrant, Mr. Martinez submitted that there was “a reasonable factual basis for calling the Court’s impartiality into question, objectively speaking.” Id. And he posited that “having a tria l conducted by a judge who objectively speaking is not impartial . . . is the ki nd of injustice Rule 33 is designed to correct.” Id. at 147. In like manner, he asked the judge to recuse himself from his sentencing because “a reasonable person would have an objective basis for ques tioning [his] impartiality.” Id. at 150. During a subsequent heari ng on Mr. Martinez’s Rule 33 Motion, the district court judge explained that he did not know, at the time of trial, th at Mr. Martinez was connected to the threats agai nst him. In particular, he asserted that “When that [Agent Acee’s] testimony came out and ev en when I read the [Rule 33 Motion] briefs, I’m like, [Mr. Martinez is] not involved in this.” Id. , Vol. 4, at 2938 (Tr. of Mot. Hr’g., dated Jun. 3, 2021) (hereinafter the “Rule 33 Motion Hearing”). Stated otherwise, the judge did not “pick . . . up at all” during Agent Acee’s testimony that Mr. Martinez was involved in threats against him. Id. at 2941. Relatedly, the judge clarified that he “didn’t have a chance to look at” the Acee Affidavit, where Mr. Martinez was explicitly mentioned as being involved in threat di scussions related to him. Id. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6667 Additionally, the judge inquired as to why Mr. Martinez failed to move for recusal during the trial. Mr . Martinez asserted that 28 U.S.C. § 455(a)—the statute governing the recusal of fe deral judges—encompassed two separate requirements: (1) the requirement to consider a motion to r ecuse made by a party, and (2) a judge’s independent obligation to recuse if doing so would be required by § 455(a). And citing the court’s “separate ob ligation to recuse,” Mr. Ma rtinez argued that, under the circumstances of his case, “t he Court should have recused itself regardless of whether there was a request.” Id. at 2945. Contrary to the statements in his motion, in the heari ng, Mr. Martinez asserted that the district court judg e’s independent obligation to recuse sprang from “what was said in the courtroom,” as opposed to the affidavit. Id. at 2957. In fact, he explicitly disclaimed reliance on the affidavit—stati ng that “[t]he motion [for a new trial] is not about the affidavit.” Id. (emphasis added). And, with re spect to what wa s said in the courtroom, Mr. Martinez urged the judge not to “look at a single question and a single answer from the cross-examination in a vacuum” but, rather, “look at the cross-examination as a whole.” Id. at 2958. To that end, he reasoned that “the conversation that was occurring in the cour troom started with threats against the federal prosecutors and FBI agents, and then evolved into questions about . . . a threat against the Court.” Id. Once more, the district judge responde d that he never connected the vague, passing reference to a threat against a judge to Mr. Martinez because Mr. Martinez was “in custody” and “four [other SNM memb ers] [were] picked up [that day].” Id. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6768 at 2960. The hearing ended with the dist rict court judge advising that he would “probably” not grant the Rule 33 Motion because “no motion to recuse was made” during trial, despite the parties having “more information” than he did. Id. at 2962. To better understand precisely what informa tion he had at his disposal, the judge stated he would “go back and try to pi ece together what information” he had available to him during the trial. Id. Nevertheless, the j udge stressed that Mr. Martinez’s connection to the threats “escaped” hi s attention and that he did not “pick up” that it was Mr. Martinez w ho was “involved in” the threats. Id. Finally, the judge noted that he would “look at the porti on [of the Rule 33 Motion] that asks for a new sentencing judge.” 11 Id. at 2963.

e. The District Court’s Order Denying the Motion for a New Trial The district court judge later issued a memorandum opinion and order denying the motion for a new trial. See id. , Vol. 1, at 301–59 (Unseal ed Mem. Op. & Order, filed Jul. 12, 2021). In that order, th e judge acknowledged that “the United States Marshals alerted the Court th at Robert Padilla[, an SNM associate,] wanted to light up the court,” that “[t]he Mars hals told the court it was a fu ture threat,” and that the court knew that Robert Padilla and othe r SNM members wanted to kill cooperating witnesses as they ca me to the courthouse to test ify at Mr. Martinez’s trial. Id. at

11 Regarding the sentencing-related recusal challenge, significantly, during the Rule 33 Motion Hearing, Mr. Martinez “agreed that the Court did not have discretion as to Count 1 [i.e ., the VICAR count], which has a minimum life sentence. . . . [and] that, although Counts 2 and 4 have disc retionary sentences, those sentences” would have no impact on his release date. R., Vol. 1, at 333. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6869 311–12. The judge explained that he did “not recall [Mr.] Martinez being connected to this threat.” Id. at 312. Moreover, the judge detailed the informa tion he had at his disposal concerning the threats, the court staff involved in reviewing that information, and their assessments of the informati on. Specifically, the judge cited six central facts in support of the contention th at the judge at no point du ring the trial knew that Mr. Martinez was connected to th e threats against the judge. First, the judge’s courtroom deputy reviewed the warrant affidavit a nd “did not see that [Mr.] Martinez was connected to the al leged threats.” Id. at 320. Second, the courtroom deputy “showed the Court a few highlighted pages [of the affidavit], which made reference to the Court, but the Court did not read all th e capitalized names ca refully, and did not make the connection between [Mr.] Martinez and the threat.” Id. Third, the judge explained that he did not “recall anything connecting [Mr. ] Martinez to the alleged threats on the Court, and, in any case, . . . did not mentally connect [Mr.] Martinez to the alleged threats on the Court.” Id. Fourth, two of the judge’s law clerks cursorily reviewed the affidavit and “[n]either . . . connected [Mr. ] Martinez to the threat.” Id. Fifth, during oral argument regarding Mr. Martinez’s oral moti on for a mistrial, “[t]he Court still did not pick up that [Mr.] Martinez was involved in the thr eat on the Court.” Id. at 321. Sixth, and finally, the judge reported seeing a news ar ticle in the Albuquerque Journal discussing Agent Acee’s testimony re garding the threat; however, the judge only “scanned [the article] to see if [his] name was mentioned, saw that [his] name Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 6970 was not in it, did not read every line, and moved on to the courtroom and the continuance of trial”; this “scanning of the article di d not alert the Court that [Mr.] Martinez was connected to the alleged threat on the Court.” Id. at 325. Importantly, the article did not draw the connection between Mr. Martin ez and the threat, as it noted only that, “[u]nder cr oss examination, [Agent] Acee testified that [Mr.] Martinez of Truchas had been linked to two threats to kill FBI agents and prosecutors.” Id. at 324. In addition to these six cen tral facts, the judge cite d the following as further support for his conclusion that he had failed to connect Mr. Martinez to the threats during trial: the government represented that the arrests Ag ent Acee made the morning of trial “relate[d] to threats against a witness” and had “nothing to do with [Mr.] Martinez”; the court did not closel y “scrutinize” the affidavit, “which discusses . . . [Mr.] Martinez only in a couple paragraphs out of ninety-eight pages” and so, though “the Court unde rstood that the [affidavit] di scuss[ed] threats,” it “did not make the connection that [Mr.] Martinez was involved in the threat on the Court”; Agent Acee’s testimony on cro ss-examination “did not exp licitly link [Mr.] Martinez to threats against the C ourt”; Mr. Martinez moved fo r a mistrial because the government’s late disclosu re allegedly prejudiced him—“not because the Court needed to recuse because of the threat”; and “trial, esp ecially a trial taking place in March 2021 during the pandemic, is a fast -paced environment where the Court does not have the time and the brain power to sift through all the facts th at the parties have at their disposal where the pa rties do not rais e the issue.” Id. at 350–51. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7071 Nevertheless, the district court judg e acknowledged that, in hindsight, he should have paid closer attention to the de tails of the evidence and the argument and thus made the connection regarding Mr. Mar tinez’s relationship to the threats. But the judge emphasized that “trying a pot entially month-long trial with Covid-19 protocols and . . . the arre sts that morning and the or al motion for a mistrial” occupied his attention. Id. at 351. And, the judge observed, “if [Mr.] Martinez did not think about [the recusal i ssue], he can hardly criticize the Court for not raising the issue su[a] sponte.” Id. Ultimately, the district cour t judge concluded that because he “was not consciously aware of [Mr.] Ma rtinez’[s] connection to the threat, . . . [he] could not evaluate whether [he] n eeded to recuse under § 455” and our precedent. Id. Though the district court judge cited his lack of actual knowledge of Mr. Martinez’s connection to th e threats as his chief reason for denying the Rule 33 Motion, he offered two additi onal bases for the denial. Fi rst, the judge reasoned that the threat was not as serious as those discussed in Tenth Circuit precedent, notably in our decision in United States v. Greenspan , 26 F.3d 1001 (10th Cir. 1994), because the alleged plotters here had been arrest ed. Second, the judge noted that, unlike Greenspan , “the Court has not taken, nor is ther e is [sic] a sugges tion that the Court has taken, any action either to expedite trial proceedings to mitigate the threat that [Mr.] Martinez poses or rule[d] against Martinez because of th e alleged threat . . . .” R., Vol. 1, at 354. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7172 The district court judge also denied Mr . Martinez’s request for him to recuse from the sentencing. As the basis for this refusal to re cuse, the judge cited, once more, the reduced severity of the threat and the fact that Mr. Martinez did “not allege that the Court [took] any action agai nst him because of the threat.” Id. at 356. Notably, however, the judge offered a third reason justifying its continuing involvement in Mr. Martinez’s sentenci ng: owing to the mandatory life sentence attached to Mr. Martinez’s VICAR conviction, an objectiv e, reasonable person would not question his impartiality in impos ing sentence on Mr. Martinez because the mandatory sentence deprived him of sentencing discretion.
2. Legal Framework Rule 33 of the Federal Rules of Criminal Procedure authorizes district courts to grant new trials if “require[d]” in “the interest of justice.” F ED

. R. C RIM

. P. 33(a). A new trial may be an appropr iate remedy if the judge’s impartiality during the trial could have reasonably been questioned. See United States v. Nickl , 427 F.3d 1286, 1297–98 (10th Ci r. 2005). Specifically, federal law in structs that a judge “shall disqualify himself in any proceeding in which his impa rtiality might reasonably be questioned.” 28 U.S.C. § 455(a). “This [recusal] requirement is intended ‘to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.’” United States v. Wells , 873 F.3d 1241, 1251 (10th Cir. 2017) (quoting Mathis v. Huff & Puff Trucking, Inc. , 787 F.3d 1297, 1310 (10th Cir. 2015)). “The standard is purely objective. The inquiry is limited to outward manifestations and reasonable Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7273 inferences drawn therefrom.” United States v. Cooley , 1 F.3d 985, 993 (10th Cir. 1993); see id. (“In applying § 455(a), the judge’s ac tual state of mind, purity of heart, incorruptibility, or lack of par tiality are not the issue.”); see also Charles Gardner Geyh & Kris Markarian, J UDICIAL D ISQUALIFICATION : A N A NALYSIS OF F EDERAL L AW , § II.B.1. A , at 20 (3d ed. 2020) (“Section 455(a) makes clear that judges should apply an objective standard in determining whether to dis qualify.”). “In other words, a judge’s subjective state of mind is irrele vant; what matters is whether ‘the public might reasonably believ e that [the judge] knew ’ of ‘facts creating an appearance of impropriety.’” Wells , 873 F.3d at 1251 (alteration in original) (emphasis added) (quoting Liljeberg v. Health Serv. Acquisition Corp. , 486 U.S. 847, 860 (1988)). “In applying the [objective] test, the initial inquiry is whether a reasonable factual basis exists for calli ng the judge’s impartiality into question.” Cooley , 1 F.3d at 993; see United States v. Pearson , 203 F.3d 1243, 1277 (10th Cir. 2000) (noting that we examine whether “s ufficient factual grounds exis t to cause a reasonable, objective person, knowing all the releva nt facts, to question the judge’s impartiality”); see also Cheney v. U.S. Dist. Ct. for the Dist. of Columbia , 541 U.S. 913, 914 (2004) (mem.) (Scalia, J.) (“The decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the fa cts as they existed, and not as they were surmised or reported.”) (quoting Microsoft Corp. v. United States , 530 U.S. 1301, 1302 (2000) (mem.) (Rehnquist, C.J.)). “We have stressed that ‘sec tion 455(a) must not be so broadly construed that it becomes, in effect, presumptive, so th at recusal is mandated upon the merest Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7374 unsubstantiated suggestion of pe rsonal bias or prejudice.’” Cooley , 1 F.3d at 993 (quoting Franks v. Nimmo , 796 F.2d 1230, 1234 (10th Cir. 1986)). Indeed, it should not be forgotten that “[t]here is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is.” Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987); accord Nichols v. Alley , 71 F.3d 347, 351 (10t h Cir. 1995) (“[W]e are mindful that a judge has as strong a duty to sit when there is no legitimate reason to recu se as he does to recu se when the law and facts require.”); see also Geyh & Markarian, supra , § II.A.2.b, at 16 (quoting Hinman and noting that “most circui ts” have adopted this “dut y to sit” principle). “In conducting this review, we must as k how these facts would appear to a well-informed , thoughtful and objective observer,” who is “an average member of the public,” not a “hypersensitive, c ynical, and suspicious person.” Mathis , 787 F.3d at 1310 (emphasis added) (quoting Sensley v. Albritton , 385 F.3d 591, 599 (5th Cir. 2004)). And courts must take into account that “cases w ithin § 455(a) are extremely fact driven ‘and must be j udged on [their] unique facts a nd circumstances more than by comparison to situations consider ed in prior jurisprudence.’” Nichols , 71 F.3d at 351 (alteration in original) (quoting United States v. Jordan , 49 F.3d 152, 157 (5th Cir. 1995)); accord Wells , 873 F.3d at 1251. Notably, “recusal is required even when a judge lacks actual knowledge of the facts indicating his interest or bias in the case if a re asonable person, knowing all the circumstances would expect that the judge would have actual knowledge.” Wells , 873 F.3d at 1251 (10th Cir. 2017) (quoting Liljeberg , 486 U.S. at 860–61); see E. & Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7475 J. Gallo Winery v. Gallo Cattle Co. , 967 F.2d 1280, 1295 n.7 (9th Cir. 1992) (noting that the judge’s “lack of actua l knowledge is irrelevant if . . . a person knowing all of the facts could reasonably question [the ju dge’s] impartiality”); Geyh & Markarian,

supra , § II.B.1.a at 22 (“Section 455 also re quires disqualification if a reasonable person might believe that the judge wa s aware of circumst ances creating an appearance of partiality, even if th e judge was in fact unaware.”). To be sure, the statute does not cont emplate that judges will, sua sponte, “perform the impossible—to disqualify them selves based on facts they do not know.” Liljeberg , 486 U.S. at 861; see id. (“[A] judge could never be expected to disqualify himself based on some fact he does not kn ow, even though the fact is one that perhaps he should know or one that peopl e might reasonably suspect that he does know.”). Nevertheless, “a j udge has a continuing duty to r ecuse before, during, or, in some circumstances, after a pr oceeding, if the judge concl udes that sufficient factual grounds exist to cause an objective obser ver reasonably to question the judge’s impartiality.” Cooley , 1 F.3d at 992. Thus, even if the judge lacked actual knowledge of facts necessitating recusal dur ing the proceeding, “the judge is not called upon to perform an impossible feat” when “called upon to rectify an oversight and to take the steps necessary to maintain public confid ence in the impartiality of the judiciary,” Liljeberg , 486 U.S. at 861, upon determining that “a reasonable person, knowing all the circum stances would expect that th e judge would have actual knowledge” of those facts, Wells , 873 F.3d at 1251 (quoting Liljeberg , 486 U.S. at 861). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7576 One such step to mainta in the confidence of the public could be granting a motion for new trial, when th e judge determines the judge’ s participation in the trial effected a violation—even an unkn owing one—of the recusal statute. See Nickl , 427 F.3d at 1297–98; cf. Liljeberg , 486 U.S. at 861 (noting that “[t]he initial appeal was taken from his failure to disquali fy himself and vacate the judgment afterhe became aware of the appearance of impropriety, not from his failure to disqualify himself when he first became involved in the litig ation and lacked the requisite knowledge”). We have held that “threats or attempts to intimidate a judge will not ordinarily satisfy the requirements for disqua lification under section 455(a).” Greenspan , 26 F.3d at 1006; accord Cooley , 1. F3d at 993–94. This includes death threats, especially when there is reason to believe that they are strategically made to force recusal. See, e.g. , Geyh & Markarian, supra , II.B.1.b.iv, at 48–49 (“Parties and their lawyers sometimes behave in ways that pr edictably engender a judge’s animus, but such behavior does not trigger the need for disqualification. To hold otherwise would be to create an opportunity for partie s to exhibit hostile behavior strategically, as a means to force disqualification. . . . Th e courts have taken a similar approach to threats against the judge.”).
3. Analysis Mr. Martinez argues that the district judge abused his di scretion in denying Mr. Martinez’s Rule 33 Motion, reasoning th at a reasonable person—aware of all the facts—would have questioned whether the judge could have im partially presided over his trial and sentencing in light of the “serious and credible ” threats against the Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7677 judge—threats that were undoubtedly “not de signed to judge shop or achieve recusal of the trial judge.” Ap lt.’s Opening Br. at 44; see also Aplt.’s Reply Br. at 14 (“The focus is instead on whether the threat was real (the record established that it was), and whether the threat was made to secure a trial benefit (there is no record evidence that it was).”). Labeling as “suspect” the judge’s asser tions that he lacked actual knowledge of any connection between Mr. Ma rtinez and the threats against him, Mr. Martinez stresses that “the test is not whether the court knew of the threat, but rather whether a reasonable, objectiv e person would call into ques tion, based upon all of the facts, the impartiality of th e court in presiding over the proceeding.” Aplt.’s Opening Br. at 45–46; Aplt.’s Reply Br. at 13 (“The § 455 recusal analysis, however, does not look at Judge Browning’s actual knowledge. It looks only to wh ether a reasonable, objective person would question Judge Browning’s impartiality.”). Moreover, in a similar vein, Mr. Martin ez suggests that the judge’s subjective assessment of the sever ity of the threats agains t him is immaterial. See Aplt.’s Opening Br. at 44 n.2 (noting that the distri ct court’s conclusion that “no reasonable person could question its impar tiality because the threats ag ainst it [i.e., the district judge] were not as se rious as the threats against the court in Greenspan ” was “improper because it [was] based upon th e court’s subjective understanding of the threats against” it); Aplt.’s Reply Br. at 14 (“Whether a reasonable observer would objectively believe that Judge Browning subjectively be lieved that he was being legitimately threatened is immaterial.”). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7778 In sum, Mr. Martinez concl udes that “[i]t was an abus e of discretion to deny [his] motion for a new trial because the threats objectively ca ll into question the propriety of Mr. Martinez’s trial and senten ce.” Aplt.’s Opening Br. at 46. Though we agree in part with the an alytical premises of Mr. Ma rtinez’s arguments, we do not agree with his conclusions. Accordingly, we uphold the distri ct court’s decision denying the Rule 33 Motion.

a. Whether the Judge Should Have Recused from the Trial i. Analytical Scope We begin by defining the analytical scope for our analysis. Given the Supreme Court’s clear language in Liljeberg , 486 U.S. at 861, and our own precedent
in Wells , 873 F.3d at 1251, we ag ree with Mr. Martinez, inso far as he contends that the focus of the § 455(a) recu sal analysis is not proper ly on whether the presiding district judge actually knew f acts that would necessitate his recusal. Rather, the focus of the analysis is on whether “a reasonable person, knowing all the circumstances would expectthat the judge would have actual knowledge” of the facts that would necessita te his recusal, Wells , 873 F.3d at 1251 (emp hasis added) (quoting Liljeberg , 486 U.S. at 860–61)— viz. , whether a reasonable pe rson would expect the judge to have actual knowledge of facts th at would have cause d a reasonable person to question whether the judge could im partially preside over the proceedings, see Geyh & Markarian, supra , § II.B.1.a, at 22 (“S ection 455 also requires disqualification if a reasona ble person might believe that the judge was aware of Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7879 circumstances creating an appearance of pa rtiality, even if the judge was in fact unaware.”). To the extent that the di strict court judge here be lieved that the focus of § 455(a)’s recusal analysis was on what he actually knew about the threats, he was mistaken. See R., Vol. 1, at 301 (opining in denyi ng the motion for new trial that one reason for that action was because “the Court was not aware of the connection between [Mr.] Martinez and the threat until after trial”). Yet it does not ineluctably or even naturally follow, as a matter of logic, that evidence of a judge’s actual knowledge is irrelevant. Such evidence, as here, may shed si gnificant light on—and even answer—the proper question of what a reasonable observer would expect the judge to know. And because it is “axioma tic” that we may affirm on any basis that finds support in the record, United States v. Garcia , 946 F.3d 1191, 1207 (10th Cir. 2020), notwithstanding the district judge’s mistaken analytical focus here, we ultimately uphold his decision denying the mo tion for new trial, after undertaking an inquiry that views the matter throu gh the proper analytical lens. Before undertaking that inquiry into what a reasonable observer—fully apprised of the relevant facts—would have expected the judge to know about Mr. Martinez’s connection to SNM’ s threats against him, it is important to recall that “threats or other attempts to intimidate the judge” under our precedent “will not ordinarily satisfy the requirements fo r disqualification under § 455(a).” Cooley , 1 F.3d at 993–94. More specifically, not “all death threats agains t a judge will mandate Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 7980 that judge’s recusal under Section 455.” Greenspan , 26 F.3d at 1006. We elaborated on this point in Greenspan : [I]f a death threat is communicat ed directly to the judge by a defendant, it may normally be presumed that one of the defendant’s motivations is to obtai n a recusal, particularly if he thereafter affirmatively s eeks a recusal. As we have stated earlier, if a judge concludes that recusal is at least one of the defendant's objectives (whether or not the th reat is taken seriously), then section 455 will not mandate recusa l because that statute is not intended to be used as a foru m shopping statute. Here, by contrast, the defendant did not communicate the death threat to the judge, nor is there any sugg estion that the defendant ever intended the judge to learn of th e threat before it was actually carried out. Thus, there is nothi ng here to suggest that the defendant was using the threat as a device to force a recusal. Id .; see Geyh & Markarian, supra , II.B.1.b.iv, at 48–51. We agree with Mr. Martinez , however, insofar as he c ontends that the recusal analysis does not turn on a particular dist rict judge’s subjectiv e assessment of the seriousness of the threat s but, rather, on whether a reasonable observer would perceive the threats as seri ous and, moreover, to be of the kind that would cause a reasonable observer to question the impartiality of a judge who would be expected to be aware of them—for instance, the kind of threats that are in fact intended to be carried out and not interposed for forum-shopping purposes. See Greenspan , 26 F.3d at 1006 (“Even if this judge were one of those remarkable individuals who could ignore the personal implications of such a [death] threat, the pub lic reasonably could doubt his ability to do so.”). The district judge here, on the one ha nd, appeared to properly focus—in assessing his duty to recuse—on the objective facts of this case. And, notably, he Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8081 drew distinctions between the f acts of this case and those in Greenspan

. See R., Vol. 1, at 350 (in comparing the fact s in this case to those in Greenspan , concluding that “the threat is not as serious as the one in Greenspan , which involved a multi-state conspiracy to hire a hitman to kill the judge and his family”); id. at 352 (“[T]he alleged threat do[es] not rise to the level of seriousness in Greenspan .”). On the other hand, the district judge appears to have mistakenly framed the analysis in terms of his “per spective” of the seriousness of the threat, rather than the perspective or viewpoint of the reasonable observer, with knowledge of the relevant facts. Id. at 352–53 (stating that “ from the Court’s perspectiv e, there effectively was no threat at the time that [M r.] Martinez says the Cour t should have perceived the threat, because all the men involved in the threat we re and are in custody”); see id. at 353 (“[W]hile the Court mistakenly thought, at the time, that the four arrests on Wednesday morning were related to the th reat on the Court, with [Agent] Acee’s testimony, the Court thought that all men re lated to the threat on the Court [were] now in custody. So, on that Wednesday morn ing, the Court though t that the threat was gone. Thus the seriousness of the thre at was, in the Court’s mind, reduced to zero at the precise moment that, [Mr.] Mart inez contends, the Court learned of [Mr.] Martinez’ ties to the allege d threat on the Court—the mo rning of the first day of testimony.”). This analytical framing error, however, is of no moment because we ultimately conclude below that the reasona ble observer would not have expected the district judge to know of Mr. Martinez’s connection to SNM’s th reats against him in the first place. Therefore, there would have been no occasion for the district judge to Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8182 assess the seriousness of th e threats. In a ny event, we may af firm on any ground supported by the record. See, e.g. , Garcia , 946 F.3d at 1207. In laying the foundation for our analysis , we also must a ddress a preservation issue that impacts the factual universe that a reasonable obs erver would have considered in setting expecta tions regarding what the dist rict court judge should have known concerning Mr. Martinez’s connecti on to SNM’s threats against him. Critically, during the hearing on the Ru le 33 Motion, Mr. Martinez expressly disclaimed reliance on the contents of Ag ent Acee’s affidavit to support his request for recusal. The context of this discla imer is important. It came immediately after a dialogue between the district court judge and the prosecutor, in which the judge questioned whether he “ever read the affida vit” or “got a copy,” and the prosecutor indicated that the affidavit was “recent,” and the prosecutor was “fairly certain” that the judge “did not get a copy” and the pros ecutor was “not sure” that the judge “had access to it.” R., Vol. 4, at 2956–57. At this point, Mr . Martinez agreed with the prosecutor’s statements, but st ressed that the judge’s appa rent lack of access to the affidavit did not underc ut his recusal claim because it was not based on the affidavit: “Your Honor, but that’s not what this mo tion is about. The mo tion is not about the affidavit. The motion is about what was said in the courtroom.” Id. at 2957. Yet despite this disclaimer, Mr. Mar tinez on appeal seek s to rely on the affidavit’s averments to support his recusa l claim. In this regard, Mr. Martinez argues that the district court became “appr ised of threats agai nst it by Mr. Martinez Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8283 and other SNM members . . . . through the testimony of an FBI agent and a search warrant affidavit .” Aplt.’s Opening Br. at 28 (emphasis added); see also id. at 45 (arguing that the threat wa s relayed to the district court by “an affidavit”). 12
Insofar as Mr. Martinez now asserts that the contents of Agent Acee’s affidavit should have alerted the judge to his connec tion to SNM threats ag ainst the judge and, by extension, put the judge on notice that his impartiality might reasonably be questioned, we deem that argument to be waived under our waiver-by-abandonment doctrine. See United States v. Egli , 13 F.4th 1139, 1144 (10t h Cir. 2021) (explaining that waiver-by-abandonment “o ccurs when a party deliberate ly considers an issue and makes an intentional deci sion to forgo it” (quoting United States v. Malone , 937 F.3d 1325, 1327 (10th Ci r. 2019))). During the heari ng on the Rule 33 Motion, Mr. Martinez unequivocally stated that his “m otion [was] not about the affidavit,” R., Vol. 4, at 2957, after the pa rties agreed that th e district judge almo st certainly would not have had access to the affidavit. In our view, Mr. Martinez “deliberately

12 Setting the stage for this argument, in the “Issues Presented” section of his appellate brief, Mr. Martinez asks: Whether Mr. Martinez is entitle d to a new trial because the district court failed to recuse itself after witness testimony, a written search warrant affidavit , and significant argument was presented during trial regarding Mr. Martinez’s, alongside other Sindicato de Nuevo Mexico members, alleged threat to kill the pres iding judge and to “light up the courtroom” during trial. Aplt.’s Opening Br. at 2 (emphasis added). Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8384 consider[ed]” the affidavit’s role in his recusal claim and “ma[de] an intentional decision to” to shift the j udge’s focus elsewhere—whic h Mr. Martinez seemingly reasoned would maintain the vitality of his r ecusal claim, despite the judge’s lack of access to the affidavit. Malone , 937 F.3d at 1327; cf. United States v. CruzRodriguez , 570 F.3d 1179, 1185 (10t h Cir. 2009) (“[I]t is pa tent that, viewed as a whole, [the defendant’s] inte ntional litigation conduct . . . effected a waiver of any challenge that [the defendant] may have had . . . . Indeed, this is tantamount to the classic waiver situation where a party ‘act ually identified the issue,’ ‘deliberately considered’ it, and then affi rmatively acted in a manner that ‘abandoned any claim’ on the issue.” (quoting United States v. Zubia-Torres , 550 F.3d 1202, 1205–06 (10th Cir. 2008))). Indeed, Mr. Martinez’s unequi vocal “disavow[al]” of the affidavit during the motion hearing is a fact that is not lo st on the government here on appeal; the government states that “it is not clear how [Mr.] Martin ez wants [us] to treat the affidavit.” Aplee.’s Resp. Br . at 50. To be sure, the government does not expressly urge us to disregard on waiver grounds Mr. Martinez’s relian ce on the affidavit’s averments. However, we “are not obliged to apply forfeiture principles to the government’s briefing omission” in failing to expressly urge us to find waiver. United States v. McGehee , 672 F.3d 860, 873 n. 5 (10th Cir. 2012). And, in light of Mr. Martinez’s clear and unequi vocal statements, we are not inclined to apply those forfeiture principles to the government’s briefing here. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8485 Moreover, though the district court judge acknowledged reviewing certain highlighted pages of the affidavit that his staff provided to him, the court framed Mr. Martinez’s recusal cl aim as relating to Agent Acee’s testimony. See R., Vol. 1, at 301 (stating that one of the “primary issues” in the moti on for new trial was whether “Special Agent Brian Acee’s testimony on the first day of the evidentiary portion of the trial about an alleged threat . . . made against . . . the Court raises reasonable questions about the Court’s impartiality”); id. at 346 (noting that one of the “two arguments” of Mr. Martinez concerned wh ether “the Court s hould have recused itself . . . when . . . [Age nt] Acee testified that [Mr. ] Martinez allegedly was connected to a threat against the Court”). Like the distri ct court judge, that in-court testimony of Agent Acee also will be our focus here. 13

13 In any event, a reasonable observe r—fully aware of the facts—would be very unlikely to expect the district court ju dge here to be aware during the trial of the averments of Agent Acee’s affi davit—as they related to Mr. Martinez’s connection to SNM’s threats against the j udge. Recall that the partie s agreed during the hearing that it was virtually certain that the district court judge did not have access to the whole affidavit on the day Agent Acee tes tified. And the district court judge recalled, at most, seeing certa in highlighted pages from th e affidavit that his staff provided to him. But neither the judge nor his staff—including his two law clerks who “briefly saw” the affidavit—conclude d, based on their cursory reviews of the affidavit, that Mr. Martinez was connected to SNM’s threats against the judge. R., Vol. 1, at 320

. As the court noted, the affidavit mentioned Mr. Martinez “only in a couple [of] paragraphs out of the ninety-eight pages.” Id. at 350. A reasonable observer would have been aware of these ci rcumstances, in addi tion to understanding the fast-moving trial environm ent in which the district court judge learned of the Acee Affidavit and the fact that it contai ned information regarding SNM’s threats. Cf. id. at 351 (distinguishing Greenspan from the circumstances he faced, the district court judge noted, among other things, that “trial, especi ally a trial taking place in March 2021 during the pandemic, is a fast -paced environment where the Court does not have the time and the brain power to sift through all the facts th at the parties have at their disposal where the parties do not ra ise the issue”). In our view, it is very Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8586 In sum, we exercise our discretion to deem this af fidavit dimension of Mr. Martinez’s recusal claim waived , and consider the merits of that claim in the light of the testimony that the district court judge heard in th e courtroom. And we conclude that a reasonable observer woul d not have expected the di strict court judge to know from this testimony about Mr. Martinez’s connection to SN M’s threats against him. Consequently, a reasonable observer woul d have had no reason to question the district court judge’s impartiality in presiding over the trial.
ii. Application A reasonable observer’s conclusion that th e district court j udge would not have been expected to know of Mr . Martinez’s connection to SNM threats against him is understandable considering th e scattershot, imprecise tes timony regarding the threats and Mr. Martinez’s own failure to raise the recusal issue. 14 Consider the

unlikely that a reasonable obser ver would have expected the district court judge to be aware of the contents of th e Acee affidavit during the tr ial. Nevertheless, it is sufficient for resolving this appeal to conclude that Mr . Martinez has waived an argument to the contrary, and we do not definitively opine on the matter.

14 Indeed, Mr. Martinez apparently fa iled to make the connection himself because he predicated his motion for a mistrial on the government’s “failure to disclose the information that Agent Acee testified to a nd was elicited on cross about the [arrests of SNM members] that happene d this morning,” R., Vol. 4, at 859—not on recusal considerations. Ak in to the district judge, we might fairly ask: if Mr. Martinez failed to discern a ny recusal implications in Agent Acee’s testimony, why should a reasonable observer ha ve expected the district court judge to do so? See id. , Vol. 1, at 351 (“The Court is not critic izing [Mr.] Martinez for no[t] raising the recusal issue, but if [Mr.] Martinez did not think about it, he can hardly criticize the Court for not raising the issue sue sponte. ”). As the government points out, Agent Acee’s testimony did not explicitly link Mr. Ma rtinez to threats ag ainst the district court judge. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8687 circumstances surrounding the testimony. Th e issue of SNM’s threats initially arose in the context of witness intimidation after Agent Acee testified that he had arrested several SNM members the morning of trial. That testimony prompted a sidebar during which the prosecutor advised that th e arrests “relate[d] to this case, but not directly to the defendant” and pertained to “threats against a witness.” R., Vol. 4, at 810 (emphasis added). Mr. Martinez then re quested discovery rela ted to the arrests, and the prosecutor supplied him with a copy of the sealed warrant affidavit, which detailed SNM’s efforts to intimidate witnesses, and th eir threats against agents, prosecutors, and, finally, th e presiding district judge. Agent Acee, however, neither read the ninety-eight-page affidavit aloud in court nor testified about threats against the presiding district judge on direct examination. A nd the prosecutor refrained from soliciting information rela ted to the affidavit on di rect examination. Rather, on cross-examination, Mr. Martinez asked Agent Acee if he “recall[ed]” mentioning “a plot to kill FB I agents and prosecutors” on “direct.” Id. at 834. Agent Acee responded that he was “intimately fam iliar with those threats” and then affirmed—in response to further questioning—that Mr. Martinez was “involved with a plot to assassinate FBI ag ents and federal prosecutors.” Id. at 834–35. Mr. Martinez then turn ed his cross-examin ation to a different topic relating to cooperating witnesses. Eventually, Mr. Mar tinez inquired: “[S]o I just wanted to go and . . . close off the threats against FBI agents and prosecutors, just for completeness. I think there was a judge’s name . . . fl oated on one of t hose; is that
correct?” Id. at 842. “Yes,” Agent Acee confir med, before testifying that he Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8788 “arrested four people th[at] morning” on “charges aris ing from the threats against FBI agents, prosecutors.” Id. As the transcript of his testimony re veals, Agent Acee c onnected Mr. Martinez to threats against “F BI agents and prosecutors”—not judges. Id. at 834. And, more specifically, when Agent Acee did testify about a threat against an unnamed judge, he did not connect that threat to Mr. Martinez. Thus, in our view, a reasonable observer would not have been inclined to expect the district court judge—based on this testimony—to connect Mr. Martinez to SNM’s threats against him. 15
This conclusion eviscerates Mr. Martinez ’s argument, insofa r as it is based on Greenspan . That is because whereas a reasonabl e observer would not have expected the district court judge here to have a ny knowledge of Mr. Ma rtinez’s connection to SNM’s threats against him based on Agent A cee’s testimony, the district court judge
in Greenspan undisputedly possessed actual kno wledge of the defendant’s death threats against him and his family and, even more, acted to mitigat e the risk that the

15 That the district court judge—in re trospect, after cons idering the motion for new trial and the arguments of counsel in a hearing on that motion, and after “looking back” at the trial testimony of Ag ent Acee and events of that trial day— subjectively believed that he could have “p arse[d] the testimony and realize that, read in context, [Agent] Acee’s testimony indicat es that [Mr.] Martinez was part of the discussions to threaten [him ],” R., Vol. 1, at 351 n.19, has no material impact on our conclusion. The judge was unequivocal in observing that “[Agent] Acee did not explicitly state that [Mr.] Ma rtinez was involved in the thr eat against [the district judge].” Id. More importantly, the focus of the inquiry is what a reasonable observer would have expected the judge to know dur ing the period that he was presiding over the trial. His subjective belief about what he personally was able to discern after the trial —once the recusal issue was presente d to him and Mr. Martinez had the opportunity to offer argument about it—is simply not germane to the analysis. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8889 threats would materialize. Specifically, r ecall that in Greenspan , “[t]he trial court was aware” at the time of Mr . Greenspan’s sentencing heari ng of allegations that Mr. Greenspan had conspired to kill the district judge or members of his family. 26 F.3d at 1005. Owing to that awareness, the di strict judge “expedited the [sentencing] hearing in order to get [Mr. Greenspan] into the federal penitentiary system, where he c[ould] be monitored more cl osely” and “refused to con tinue the sentencing hearing at the request of defendant’s counsel, who had been appointed onl y two days before the expedited sentencing date.” Id. (internal quotations omitted) . We concluded that under the “unique circumstances” of the judge having “learned of an alleged conspiracy [involving Mr. Gr eenspan] to assassinate hi m from the FBI,” the “trial judge should have recused himself from sentencing [Mr.] Greenspan.” 16 Id. at 1006.

16 The district judge here said that he did not “read Greenspan to mandate recusal anytime there is a serious threat” and that the case “emphasi zes repeatedly” the trial court’s action in the face of th e death threat to acce lerate the sentencing proceedings of the defendant—making that decision effectivel y a “plus” factor necessitating the recusal. R., Vol. 1, at 354; see id. at 347 (noting that “the Court does not read Greenspan to create a per se rule that a judge must recuse when it becomes aware of a legitimate thr eat”). This interpretation of Greenspan led the judge to identify as a discrete factor cutting against Mr. Ma rtinez’s argument for recusal the fact that he had not “taken any action based on the threat that raises questions about the Court’s impartiality.” Id. at 353–54; see 354 (“Here, the Court has not taken, nor is there is a suggestion that the Court has taken, any action either to expedite trial proceedings to mitigate the threat that [Mr. ] Martinez poses or rule[d] against [Mr.] Mar tinez because of the al leged threat, and, under Greenspan , the mere specter of a serious threat, without more, is not sufficient reason for a court to recuse.”). It is quite true that Greenspan does not require a judge to recuse in each and every instance that a serious threat—including a death threat —is lodged against him. Indeed, Greenspan says as much: “[I]f a judge conclu des that recusal is at least one of the defendant's objectives ( whether or not the threat is taken seriously ), then Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 8990 Viewed through the eyes of the reasonable observer, the ci rcumstances here could not be further away from this. In sum, we conclude that a reasonabl e observer would not have expected the district court judge to know from the ev ents of trial—speci fically, Agent Acee’s testimony—about Mr. Martinez’s connecti on to SNM’s threats against him. Consequently, a reasonable observer woul d have had no reason to question the district court judge’s impartia lity in presiding over Mr. Martinez’s trial. On this basis, we conclude that the district judge did not abuse his discretion in rejecting Mr.

section 455 will not mandate recu sal because that statute is not intended to be used as a forum shopping statute.” 26 F.3d at 1006. However, we respectfully disagree with the district judge’s view that, under Greenspan , a serious threat against a judge, without more, cannot be sufficient to wa rrant recusal under § 455. Indeed, Greenspan ’s language itself suggests to the contrary; it speaks of the necessity for the judge to recuse, before even mentioning th e court’s decision to mitigate the risk of the defendant’s threats through acceler ating his sentencing proceeding. See 26 F.3d at 1006 (“The court concludes that under th ese unique circumstances, the trial judge should have recused himself from sentenci ng [Mr.] Greenspan. The judge learned of the alleged threat from the FB I, and there is nothing in the record to suggest the threat was a ruse by the defenda nt in an effort to obtain a different judge. . . . In a case like the present, where there is no in ference that the thr eat was some kind of ploy, the judge should have recused himsel f pursuant to section 455(a) and allowed another judge to sentence [Mr.] Greenspan.” ). Moreover, we expressly noted in Greenspan that there were “unique circ umstances” at play there. Id. This strongly suggests that it would be ill-advised to infer from that case—as the district judge appeared to do here—a universally applicab le “plus” factor th at must exist beyond a serious threat in order to jus tify recusal. R., Vol. 1, at 354. Moreover, any decisional approach that seeks to identify and apply uni versally applicable factors in the recusal analysis would be in tension with our pr ecedent that counsels that “cases within § 455(a) are extremely fact driven ‘and must be judged on [the ir] unique facts and circumstances more than by comparison to situations considered in prior jurisprudence.’” Nichols , 71 F.3d at 351 (alteration in original) (quoting Jordan , 49 F.3d at 157); accord Wells , 873 F.3d at 1251. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 9091 Martinez’s recusal clai m to the extent that it pertains to his work in presiding over the trial.
b. Whether the District Court Judge Should Have Recused from the Sentencing Finally, in support of his recusal cl aim as it relates to his sentencing proceeding, Mr. Martinez offers nothing mo re than bald, conclusory assertions, which only are made in tandem with his recu sal arguments regardi ng the trial. In other words, he offers no discrete recusa l arguments relating to his sentencing. Specifically, Mr. Martinez ma intains that “there is l ittle doubt that a reasonable person would conclude that [the threats discussed in Agent Acee’s testimony and affidavit] were of such a se rious nature as to call into question the propriety of his trial and sentence.” Aplt.’s Opening Br. at 45. And to conclude his argument, he asserts the following: “The court[’]s subj ective understanding of those threats is irrelevant. It was an abuse of discreti on to deny Mr. Martinez’s motion for a new trial because the threats objectively call into question the propriety of Mr. Martinez’s trial and sentence.” Id. at 46; see also id. at 29 (asserting conclusorily in his “Summary of Argument” section that SN M’s threats involving Mr. Martinez were “serious” and “result[ed] in a reasonable, objective pers on legitimately questioning the impartiality and propriety of Mr. Mart inez’s trial and subseq uent sentence”). The government is correct in assert ing that, though Mr. Martinez nominally raises “the potential recusal from his se ntencing,” he has failed to develop a meaningful argument regarding th at issue. Aplee.’s Resp. Br . at 46 n.9. This lack of Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 9192 a meaningful argument in itself might justify us in deeming Mr. Martinez’s sentencing-related recu sal claim waived. See, e.g. , United States v. Pursley , 577 F.3d 1204, 1232 n.17 (10th Cir. 2009) (“Under our precedent, th is skeletal reference is insufficient to raise the ex pa rte/disclosure concern as a discrete appellate issue. Accordingly, we appropriately deem it to be waived.” (citation omitted)); Bronson , 500 F.3d at 1105 (observing th at “cursory statements, w ithout supporting analysis and case law” are not the kind of briefing that preserves ar guments for review). But there is more. Unlike Mr. Martinez’s briefi ng, the district court j udge separately addressed the question of recusal relating to Mr. Ma rtinez’s sentencing proceeding and offered discrete reasons why he d eemed there to be no need for recusal. Though Mr. Martinez does quarrel generally with one of them—i.e., the district judge’s allegedly subjective understanding of the severity (or lack thereof) of the threats against him— Mr. Martinez notably fails to address another key reas on why the district judge rejected his recusal claim regarding sentencing. 17 Specifically, the district judge reasoned that owing to the mandatory lif e sentence attached to Mr. Martinez’s VICAR conviction (i.e., Count 1), an obj ective, reasonable observer would not question his impartiality in imposing sentence on Mr. Mar tinez because the

17 Recall that in justifying its decision not to recuse, the district court also explained that Mr. Martinez’s “alleged thre at against the Court [was] not as serious as in Greenspan ” and Mr. Martinez had “not allege[d ] that the Court . . . t[ook] any action against him because of the th reat.” R., Vol. 1, at 356. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 9293 mandatory sentence deprived him of sentencing discretion. 18 Mr. Martinez’s failure to address this lack-of-discr etion rationale of the court dooms his recusal claim as to his sentencing. Our law is clear: “The firs t task of an appellant is to explain to us why the district court’s decision was wrong.” Nixon v. City & Cnty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015). Mr. Martinez has failed in this task. In particular, he has waived any argument challenging the di strict court judge’s lack-of-discretion rationale. And, absent such a challenge, we may uphold the district court judge’s ultimate decision not to recuse from Mr. Martinez’s sentencing without reaching the merits. See, e.g. , Rivero v. Bd. of Regent s of Univ. of New Mexico , 950 F.3d 754, 763 (10th Cir. 2020) (“[R]ather th an address the merits, we c hoose to affirm the district court’s rejection of [the plaintiff’s] moti on to recuse on the ground that his opening brief on appeal never challenges the re jection of the motion on the ground of untimeliness. . . . If the di strict court states multiple a lternative grounds for its ruling and the appellant does not chal lenge all those grounds in the opening brief, then we may affirm the ruling.”).
IV. C ONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment as to Mr. Martinez’s convictions and sentence.

18 Notably, during the district cour t’s hearing on the Rule 33 Motion, Mr. Martinez “agreed that, although Counts 2 a nd 4 have discretionary sentences, those sentences will not ‘change the outcome of wh ether he’s released.’ ” R., Vol. 1, at 333. Appellate Case: 22-2034 Document: 010111001759 Date Filed: 02/16/2024 Page: 93