United States v. Fleming, 2011 U.S. App. LEXIS 24730

Fleming was indicted for conspiracy to possess with intent to distribute and to distribute 50 grams+ (later superseded to 500 grams+) of methamphetamine, charged under 21 U.S.C. § 841 and § 846.
During pretrial detainment, Fleming learned witnesses who would testify against him and used jail calls to warn a contact about witnesses and to identify where they were incarcerated.
At trial, the government relied on testimony from Wyoming/Colorado distributors and co‑conspirators; no drugs were seized from Fleming.
Defense highlighted lack of seized drugs and challenged witnesses’ credibility; prosecutor rebuttal argued witnesses’ credibility and involvement in drug dealing.
Fleming was convicted of conspiracy and later sentenced to 240 months; the PSR recommended a two‑level obstruction of justice enhancement under § 3C1.1, which the district court imposed.
On appeal, Fleming challenges the closing‑argument remarks as prosecutorial misconduct and the obstruction enhancement as unsupported.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct standard	Fleming argues closing remarks were improper and prejudicial.	Fleming contends the prosecutor inflamed passions and urged a guilt‑by‑association verdict.	No plain error; statements not improperly prejudicial in context.
Guilt by association remark	Prosecutor’s Cathy Scott remark urged guilt by association.	Statement improperly suggested Fleming’s guilt based on associations.	Harmless beyond a reasonable doubt; no plain error.
Obstruction of justice enhancement	Statements to a third party cannot constitute a substantial step toward obstruction.	Fleming’s statements were an attempted obstruction supported by substantial steps.	Yes; the third‑party messaging can be a substantial step; district court did not clearly err in applying the enhancement.

United States v. Rogers, 556 F.3d 1130 (10th Cir. 2009) (two‑step analysis for prosecutorial misconduct and harmlessness standard)
United States v. Irvin, 656 F.3d 1151 (10th Cir. 2011) (misconduct review requires harmlessness after plain error determination)
United States v. Baldridge, 559 F.3d 1126 (10th Cir. 2009) (two‑step plain error review for prosecutorial misconduct)
United States v. Lopez‑Medina, 596 F.3d 716 (10th Cir. 2010) (contextual analysis of remarks in evaluating improper conduct)
United States v. Franklin‑El, 555 F.3d 1115 (10th Cir. 2009) (rebuttal closing remarks and defense argument interplay)
United States v. Janus Indus., 48 F.3d 1548 (10th Cir. 1995) (prosecutor latitude to respond to opposing closing arguments)
United States v. Hall, 625 F.3d 673 (10th Cir. 2010) (prosecutorial latitude in closing argument)
United States v. Sierra‑Ledesma, 645 F.3d 1213 (10th Cir. 2011) (contextual evaluation of improper remarks within lengthy closings)
United States v. Reid, 911 F.2d 1456 (10th Cir. 1990) (addressing threats to witnesses via third parties in obstruction context)
United States v. Jackson, 974 F.2d 104 (9th Cir. 1992) (threats conveyed indirectly via third parties can support obstruction)