United States v. WoodmoreUnited States v. Woodmore
Gail K. Johnson, Johnson & Klein, PLLC, Boulder, Colorado, for Defendant-Appellant.
James R.W. Braun, Special Assistant U.S. Attorney (Christopher J. Wilson, United States Attorney, with him on the brief), Office of the United States Attorney for the Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee.
HOLMES, Chief Judge.
This case presents the second installment in the saga of the Woodmore brothers—Early and Calvin Woodmore—and their drug-trafficking ring (the “Woodmore organization“) that operated throughout eastern Oklahoma. The Woodmore brothers proceeded to trial jointly in April 2022 and were both convicted for their role in the Woodmore organization‘s methamphetamine-distribution enterprise. In January 2025, we affirmed the district court‘s judgment in the appeal of Calvin Woodmore (“Calvin“) related to his involvement in the Woodmore organization. See United States v. Calvin Woodmore, 127 F.4th 193 (10th Cir. 2025).1 We now turn to the appeal of Defendant-Appellant Early Woodmore (“Mr. Woodmore“). On appeal, Mr. Woodmore raises some of the same challenges as Calvin. Like Calvin, Mr. Woodmore argues that the district court erred by failing to properly instruct the jury in two separate ways—viz., first, by delivering an instruction involving the right of attorneys to interview witnesses prior to triаl, and second, by failing to provide a definitional instruction for the term “methamphetamine (actual).” Separately, Mr. Woodmore contends that the district court‘s resolution of an apparent custody dispute between Mr. Woodmore‘s father and Mr. Woodmore‘s ex-wife in the midst of trial constituted actual or apparent judicial bias in contravention of the U.S. Constitution and the federal recusal statute,
For the reasons discussed below, we reject each of Mr. Woodmore‘s challenges. Accordingly, exercising jurisdiction under
I
A
We detailed the factual background related to the Woodmore brothers’ arrests
In July 2018, the Sheriff of Haskell County, Oklahoma, informed the Drug Enforcement Administration (“DEA“) that an individual in eastern Oklahoma was obtaining quantities of methamphetamine through the mail. The Sheriff explained that he had connected these shipments to an individual named Early Woodmore. Working alongside numerous local, state, and federal law enforcement agencies, the DEA launched a joint investigation into the drug-trafficking activities of the Woodmore organization.
The Woodmore organization consisted of at least a dozen members, including three siblings of the Woodmore family. Mr. Woodmore was the leader of the organization, and he was aided by his brother, Calvin, and their sister, Amber Woodmore (“Amber“). The Woodmore siblings were aided by at least nine other individuals, some of whom were longtime acquaintances of the Woodmore family and fellow residents of eastern Oklahoma.
In August 2017, Mr. Woodmore met Kimberly Noel, who lived in Desert Hot Springs, California, and she soon began to supply the Woodmore organization with methamphetamine. Ms. Noel and Mr. Woodmore devised a shipment and payment system for their methamphetamine transactions. Every few weeks, Ms. Noel would mail methamphetamine concealed in everyday objects (such as peanut butter jars) from California to various addresses in and around eastern Oklahoma, including the residences of other Woodmore organization associates. Once the packages arrived at the designated destinations, a Woodmore organization associate would retrieve and break down each package of methamphetamine into smaller drug quantities for distribution.
Mr. Woodmore typically tasked Woodmore organization associates with selling the methamphetamine. But Mr. Woodmore also occasionally sold methamphetamine personally. For example, on November 6, 2018, a confidential source for the DEA bought 55.7 grams of methamphetamine from Mr. Woodmore for $800. That methamphetamine was later tested and determined to be “98 percent pure plus or minus four percent“—with a corresponding pure substance weight of “54.5 grams” (that is, a little less than two ounces). R., Vol. IV, at 137 (Trial Tr., Vol. I, dated Apr. 4, 2022).
Ms. Noel typically sent the Woodmore organization one pound of methamphetamine per shipment. According to a DEA agent, the price per pound fluctuated throughout the period of the Woodmore organization‘s activities, ranging from roughly $2,000 to $4,000. In total, during the course of her business relationship with Mr. Woodmore, Ms. Noel shipped the Woodmore organization between twenty and thirty pounds of methamphetamine. In return, Mr. Woodmore or one of his associates would send Ms. Noel a portion of the proceeds via wire transfer.
2
In April 2019, roughly a year after the DEA began investigating the Woodmore organization, federal agents obtained arrest warrants for Mr. Woodmore and Calvin for their alleged involvement in an assault on a Woodmore organization associate. Law enforcement officers arrested Calvin on April 2, 2019 and arrested Mr. Woodmore on April 18, 2019. Both Mr. Woodmore and Calvin have been incarcerated since these arrests.
After hеr brothers’ arrests, Amber assumed control of the Woodmore organization‘s
On August 15, 2019, investigators planned to seize a package shipped by Ms. Noel that was due to arrive at the Rogers, Arkansas, motel. That evening, Mr. Woodmore called the recipient of the package, Woodmore organization associate Valerie Adcock, on a recorded line from jail and asked her to check if a package had been delivered. Investigators, however, intercepted the package in Arkansas on August 16, 2019, before it reached the motel. Subsequent testing revealed that thе seized package contained methamphetamine that weighed approximately 444.4 gross grams. Of that amount, “439.9 gross grams, [or] approximately one pound” was pure methamphetamine. Id. at 832 (Trial Tr., Vol. III, dated Apr. 6, 2022). This represented a purity level of 99 percent. After this seizure, Ms. Noel ceased sending packages to the Woodmore organization.
B
1
On January 14, 2020, a federal grand jury in the Eastern District of Oklahoma indicted Mr. Woodmore and eleven other defendants, including Calvin, Amber, and Ms. Noel. Mr. Woodmore was charged with five counts: Count One, conspiracy to “knowingly and intentionally distribute 50 grams or more of methamphetamine (actual),” in violation of
Mr. Woodmore exercised his right to a jury trial, and he and Calvin proceedеd to trial jointly in April 2022.2
2
A week before trial, the district court held a pretrial conference. During this hearing, the government informed the court that some of the government‘s witnesses had reported that they were being threatened by family members of the Woodmore brothers. The district court responded that it understood the prosecutor‘s concerns and that it would address
At the first day of trial and prior to jury selection, the government updated the court on the purported witness threats, stating:
Over the weekend, [the witnesses] have continued to receive threats where members of the defendants’ family have threatened to kill at least one or two of our witnesses. I don‘t know if those members will be present in the courtroom today. I know those witnesses will be here this week. I just want to bring that to the Court‘s attention in case something happens.
R., Vol. IV, at 83. The district court acknowledged the prosecutor‘s update.
Then, during the second day of trial and outside the jury‘s presence, the government further updated the court, and the following exchange ensued:
[PROSECUTOR]: Your Honor, two witnesses, one is Lacey Ford, [Mr.] Woodmore‘s ex-wife. Her daughter is sitting here in this courtroom next to [Mr. Woodmore‘s] father. He has held on to her since Sunday when he was supposed to return her, and she‘s [i.e., Lacey Ford is] supposed to be here to testify. They have repeatedly threatened her. Now, they‘re holding their daughter hostage in this courtroom.
THE COURT: Why would -- this is Early [Woodmore]?
[PROSECUTOR]: This is Early‘s father in the courtroom.
THE COURT: That‘s Early‘s father. What is her connection to Mr. Woodmore?
[PROSECUTOR]: Ex-wife and that is their mutual child. He was supposed to return her on Sunday and has not. The family members have told her [i.e., Lacey Ford], [d]o not come to court. She is one of the people that ha[s] been threatened, Judge.
THE COURT: So does she -- she has custody of the child?
[PROSECUTOR]: Yes. They were there for a visitation for the weekend[,] and he won‘t give her back. I‘m not saying that was wise, Judge. That‘s what she told our agent this morning.
THE COURT: So do you all know anything about that, [Mr. Woodmore‘s counsel]? [Calvin Woodmore‘s counsel]?
[MR. WOODMORE‘S COUNSEL]: Obviously, I don‘t have any copy of any custody order. I don‘t know what the situation is[,] and I obviously haven‘t talked with this witness to verify that.
THE COURT: Does she have a custody order?
[PROSECUTOR]: I would have to ask her, Judge.
THE COURT: Ask her if she has a custody order. If she has a custody order, then her children will be leaving with her when she shows up.
Id. at 372-74.
After a short recess, at the bench outside of the jury‘s hearing, the district court informed the parties that it had found on the internet a custody report pertaining to Mr. Woodmore and Ms. Ford‘s child, stating:
All right. Counsel, I have pulled the decree of the dissolution of the marriage of Lacey Cheyenne Ford and Early Willard Woodmore, III, from Pittsburg County court docket. The decree indicates
that there are three children. There‘s a KAF, a TJW, and ASW. Those children -- the custody of those children has been awarded to the petitioner in the case, who was Ms. Ford.
Id. at 374.
The district court then asked the government if Ms. Ford was in the courthouse, leading to the following exchange:
[PROSECUTOR]: She is upstairs in our witness room, Judge.
THE COURT: What does she want done with her children?
[PROSECUTOR]: She wants to go home with them today, at least the daughter, Judge.
THE COURT: Does she want them in the courtroom?
[PROSECUTOR]: I can ask her.
THE COURT: Or does she want them in the witness room?
[PROSECUTOR]: I think she would rather have them in the witness room when she testifies.
THE COURT: If she wants them in the witness room, the marshals will escort the children to the witness room and there will be no interference with that.
. . . .
THE COURT: . . . Just go check with Ms. Ford. We‘ll wait here for a moment and then you can step back[,] and you can come back to the bench.
Id. at 374-76.
During a short recess, the prosecutor spoke to Ms. Ford and subsequently reported back to the district court at the bench outside of the jury‘s hearing:
THE COURT: All right. . . . [H]ave you had an opportunity to talk with Ms. Ford?
[PROSECUTOR]: Yes, your Honor. She would like both children returned to her upstairs. She is on the fifth floor in our witness waiting room.
THE COURT: Okay. The marshals are going to be instructed to escort the children. Are there three children? Where‘s the third child?
[PROSECUTOR]: This is just all they have, your Honor.
THE COURT: So the marshals are going to escort the children up to the third floor to the witness room.
[PROSECUTOR]: Fifth floor.
THE COURT: All right. So that‘s going to happen right now.
[PROSECUTOR]: Thank you, Judge.
Id. at 377. At no point in this exchange or throughout the subsequent trial proceedings did Mr. Woodmore‘s counsel object to the district court‘s handling of the custody dispute. Ms. Ford eventually testified at trial as a witness for the government.
3
At trial, the government presented testimony from several co-conspirators of the Woodmore organization, including Ms. Noel, and multiple law enforcement officers. For example, two DEA agents testified as to the purity weights of two seized samples of methamphetamine that the Woodmore organization sought to or did distribute: the 54.5 grams of pure methamphetamine sold by Mr. Woodmore on November 6, 2018, and the 439.9 grams of pure methamphetamine shipped to the Rogers, Arkansas, motel on August 15, 2019. Notably, two witnesses—Ashley Miller and Dennis Marshall—testified that they met with prosecutors in advance of trial to discuss their testimony.
After presenting three days of evidence, the government rested its case. Neither Mr. Woodmore nor Calvin testified at trial, and the case was submitted to the jury.
Two decisions that the district court made with respect to the jury instructions are relevant on appeal. First, the district court charged the jury with an instruction that used the term “methamphetamine (actual)” in its description of Count One of the Indictment, which itself used that term. Compare R., Vol. I, at 458 (Jury Instrs., filed Apr. 7, 2022) (noting in a final instruction that Mr. Woodmore “is charged with conspiracy to knowingly and intentionally distribute and/or possess with intent to distribute 50 grams or more methamphetamine (actual), a Schedule II controlled substance“), with id. at 91 (Indictment charging Mr. Woodmore with a conspiracy to “knowingly and intentionally distribute 50 grams or more of methamphetamine (actual)“). Apparently anticipating that the court might do so, Mr. Woodmore and Calvin had jointly proposed an instruction that would include a definition for that term. The proposed instruction read:
In this case, the Defendants are charged with various offenses related to the possession and/or distribution of “Methamphetamine (actual).” Controlled substances are often diluted and combined with other substances as they pass down the chain of distribution. In this case, should you find that Defendants possessed and/or distributed a mixture of [sic] substance containing methamphetamine, you must also determine the amount of methamphetamine (actual) contained therein.
The term “Methamphetamine (actual)” refers to the weight of the controlled substance, itself, contained in the mixture or substance. For example, a mixture weighing 10 grams containing methamphetamine at 50% purity contains 5 grams of Methamphetamine (actual).
R., Vol. I, at 437 (Defs.’ Requested Jury Instrs., filed Apr. 7, 2022). As аuthority for this instruction, Mr. Woodmore and Calvin cited the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines“) specifically, the commentary to U.S.S.G. § 2D1.1. The district court ultimately denied the proposed instruction, finding that it would not “be helpful” to the jury “based upon the evidence.” See R., Vol. IV, at 916 (Trial Tr., Vol. IV, dated Apr. 7, 2022).
Second, the district court gave an instruction addressing the propriety of attorneys interviewing witnesses before trial. Specifically, the government had proposed an instruction regarding the rights of attorneys to interview witnesses prior to trial.3 In full, that instruction read:
Right of Attorney to Interview Witnesses
An attorney has the right to interview his witnesses for the purpose of learning the testimony those witnesses will give. The fact that the witness has talked to an attorney and told the attorney what he or she would testify to does not, by itself, reflect adversely on the truth of the testimony of the witness.
R., Vol. I, at 205 (Pl.‘s Requested Jury Instrs., dated Feb. 26, 2021). Mr. Woodmore objected to the proposed instruction, stating that the instruction was “not a pattern instruction from the Tenth Circuit” and that the second sentence of the instruction “would [not] fit this situation.” R., Vol. IV, at 895. However, Mr. Woodmore‘s counsel also stated that he had “no problem with the court instructing that an attorney has the right to interview witnesses.”
Subsequently, Calvin‘s counsel objected to the instruction, disagreeing with the premise that “an attorney has a right to interview witnesses.” Id. at 896. In response, the district court edited the instruction to read that “an attorney may have the right” as opposed to “an attorney has the right,” but in all other respects the instruction remained the same. See id. at 896-97 (emphasis added); R., Vol. I, at 453. Mr. Woodmore then “suggest[ed] [that] instead of using the word ‘right,’ [they] use the word ‘opportunity,‘” but the district court “noted and overruled” this suggestion. R., Vol. IV, at 897. The following day, after Mr. Woodmore was provided with a new copy of the jury instructions, he raised the “[s]ame objection as yesterday” with respect to the instruction. Id. at 917. The district court once again noted and overruled his objection. Id. The final instruction that the court delivered to the jury read:
RIGHT OF ATTORNEY TO INTERVIEW WITNESSES
An attorney may have the right to interview witnesses for the purpose of learning the testimony those witnesses will give. The fact that a witness has talked to an attorney and told the attorney what he or she would testify to does not, by itself, reflect adversely on the truth of the testimony of the witness.
R., Vol. I, at 453.
5
At the conclusion of trial, the jury convicted Mr. Woodmore on all five counts. R., Vol. III, at 105-06 (Verdict Form, dated Apr. 7, 2022). In connection with Count One, the jury determined that “[a]t least 50 grams or more” of methamphetamine was attributable to Mr. Woodmore “as a result of his own conduct and the conduct of the other co-conspirators that was reasonably foreseeable to him.” Id. at 105; R., Vol. IV, at 1049.
6
Mr. Woodmore appeared before the district court for sentencing on August 4, 2023. His Guidelines imprisonment range was life as to each of Counts One and Two and 240 months (the statutory maximum) as to each of Counts Nine, Twelve, and Twenty. The district court sentenced Mr. Woodmore to life imprisonment as to each of Counts One and Two and 240 months as to each of Counts Nine, Twelve, and Twenty, with the sentences to run concurrently.
7
The district court entered final judgment, and Mr. Woodmore timely filed his notice of appeal. We have jurisdiction over his appeal pursuant to
II
Mr. Woodmore raises three challenges to his convictions. First, he argues—based on constitutional and statutory grounds—that the district court‘s resolution of an apparent custody dispute at trial evinced actual or apparent judicial bias. Second, he contends that the district court erred by delivering an instruction to the jury involving the right of attorneys to interview witnesses prior to trial. Third, he argues that the district court erred by failing to provide the jury with a definitional instruction for the term “methamphetamine (actual).”
We address each argument in turn. Concluding that Mr. Woodmore‘s arguments
A
We first review Mr. Woodmore‘s judicial bias challenge. Mr. Woodmore argues—based on constitutional and statutory grounds—that the district court‘s resolution of an apparent custody dispute during trial in response to the government‘s allegations of witness intimidation exhibited actual or apparent judicial bias.
1
Mr. Woodmore acknowledges that he failed to object at trial to the district court‘s actions that he now argues evinced actual or apparent judicial bias, and he therefore requests we review only for plain error. See United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012) (“[W]here a defendant has forfeited an issue in the district court, in order to prevail [on appeal], a defendant must make a sufficient showing of error under the plain-error standard.“).
““A party seeking relief under the plain-error rubric bears the burden of showing “(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights.““” United States v. B.N.M., 107 F.4th 1152, 1170 (10th Cir. 2024) (quoting United States v. Finnesy, 953 F.3d 675, 684 (10th Cir. 2020)). “If these factors are met, [this court] may exercise discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in original) (quoting Finnesy, 953 F.3d at 684). Importantly, we “apply the plain error rule less rigidly when reviewing a potential constitutional error.” United States v. Starks, 34 F.4th 1142, 1157 (10th Cir. 2022) (quoting United States v. Dalton, 918 F.3d 1117, 1130 (10th Cir. 2019)); accord United States v. Magallanez, 408 F.3d 672, 683 (10th Cir. 2005) (“[T]he plain error test is applied less rigorously in the context of alleged constitutional error than in the context of non-constitutional error.“).
2
a
“The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.” United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)). “To demonstrate a violation of due process because of judicial bias, a claimant must show either actual bias or an appearance of bias.” Id. Recusal is required for a judge “if sufficient factual grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question the judge‘s impartiality.” Id. (quoting United States v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000)). But “[a] judge‘s actual state of mind or prejudice is not at issue“; instead, we employ a “purely objective” standard for determining judicial bias, in which “[t]he inquiry is limited to outward manifestations and reasonable inferences drawn therefrom.” Id. (second alteration in original) (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).
“Ordinarily, when a judge‘s words or actions are motivated by events originating within the context of judicial proceedings, they are insulated from charges of bias.” Id. As a result, “[a]dverse rulings alone do not demonstrate judicial bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010); see also Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (“[A]dverse rulings ‘cannot in themselves
However, “when a judge‘s decisions, opinions, or remarks stem from an еxtrajudicial source—a source outside judicial proceedings,” recusal may be warranted. Id. Recusal is required “when a judge‘s actions or comments ‘reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.‘” Id. (quoting Liteky, 510 U.S. at 555). For example, “[c]ourts have found an impermissible level of bias when a judge‘s remarks or actions reveal he has prejudged the guilt of a defendant.” Id.
b
Under
“We have explained that ‘disqualification is appropriate only where a reasonable person, were he to know all the circumstances, would harbor doubts about the judge‘s impartiality.‘” United States v. Mendoza, 468 F.3d 1256, 1261-62 (10th Cir. 2006) (quoting In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004)); see also Pearson, 203 F.3d at 1277 (“A judge has a continuing duty to recuse under
““In conducting this review, we must ask how these facts would appear to a well-informed, thoughtful and objective observer,’ who is ‘an average member of the public,’ not a ‘hypersensitive, cynical, and suspicious person.‘” Id. (emphasis omitted) (quoting Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1310 (10th Cir. 2015)). Importantly, “cases within
We have emphasized that
3
Mr. Woodmore argues that the “[t]he district court‘s response to the [government‘s] allegations of witness intimidation exhibited judicial bias or apparent bias, and reversal is required on constitutional and statutory grounds.” Aplt.‘s Opening Br. at 13 (bold typeface omitted). He first argues that the district court‘s actions violated his due process rights under the Fifth Amendment, and he next argues that the district court‘s actions violated the purportedly “more stringent statutory requirement” for recusаl under
a
Mr. Woodmore contends that his due process rights were violated by the district court‘s resolution of the incident surrounding the presence of Mr. Woodmore and Ms. Ford‘s daughter in the courtroom alongside Mr. Woodmore‘s father. Recall that during trial the government notified the district court that Mr. Woodmore‘s daughter was “sitting [] in th[e] courtroom next to [Mr. Woodmore‘s] father,” who had allegedly kept her “since Sunday when he was supposed to return her” to her mother, Ms. Ford, who was scheduled to testify at trial as a government witness. R., Vol. IV, at 372. The district court resolved the conundrum by finding an online copy of the divorce decree—which stated that the children of Mr. Woodmore and Ms. Ford were legally in the custody of Ms. Ford—and later directing the marshals in the courtroom to return the children (including the daughter, who had been sitting with Mr. Woodmore‘s father) to Ms. Ford.
Mr. Woodmore now argues that the district court‘s actions and statements “exhibited bias or the appearance of bias” because “[1]he district court did not hear from the witness directly,” “[1]he district court did not ask Mr. Woodmore‘s father for any explanation,” and “the district court did not question the child.” Aplt.‘s Opening Br. at 16. Instead, Mr. Woodmore asserts, the district court “accepted the [government‘s] unsupported allegation as gospel, conducted its own very brief investigation by obtaining a custody order apparently available to the court through online records from the applicable local family court in Oklahoma, and summarily ordered multiple children into the custody of the U.S. Marshals Service with instructions to them to escort the children to the [] witness room.” Id. Mr. Woodmore then states that the district court “ha[d] no authority over local family court or child custody or visitation matters” and did not “have a clue” that, in fact, “Mr. Woodmore‘s father was court-approved for temporary visitation.” Id. at 16. And he labels the “use of the force of the U.S. Marshals Service to interfere in this family matter” as “an extraordinary act that revealed either the court‘s bias in favor of the [government] or bias against Mr. Woodmore.” Id. at 16-17 (emphasis added).
Applying our plain-error framework, Mr. Woodmore argues that the alleged due process violation is a “plain” error (presumably meaning clear or obvious error) because “taking the [government‘s] word for the incendiary allegation that Mr. Woodmore‘s father was holding the child hostage in order to intimidate a [government] witness reflects and gives the appearance of judicial bias.” Id. at 17. Next, he argues that the third prong of plain-error review is sаtisfied because “the error was structural.” Id. Finally, to establish the fourth prong, he argues that “[t]he Supreme Court has reasoned that state
However, we conclude that Mr. Woodmore‘s due process challenge fails to satisfy even the first prong of the plain-error rubric—a showing of error. Specifically, the district court‘s conduct here is “immune” from a charge of “bias and partiality” because its conduct simply amounted to “ordinary efforts at courtroom administration.” Nickl, 427 F.3d at 1298. While acting to maintain a setting of order and proper decorum for witness testimony, the district court was faced with an apparent custody dispute between Mr. Woodmore‘s father and Ms. Ford, a forthcoming government witness. To resolve the dispute and to ensure the orderly continuation of the proceedings, the district court first asked questions to both the government and Mr. Woodmore‘s counsel to better understand the situation at hand. It bears underscoring that Mr. Woodmore‘s counsel was given an equal opportunity by the court to shed light on the situation as Mr. Woodmore‘s advocate. Yet Mr. Woodmore‘s counsel responded that he did not “have any copy of any custody order” or “know what the situation is.” R., Vol. IV, at 373. The district court nevertheless had a job to do. It needed to establish the conditions for the upcoming, scheduled witness testimony of Ms. Ford by resolving—in some manner—this custody dispute. Not unreasonably, the court sought to do so by retrieving a divorce decree online that appeared to clarify the children‘s custody status. After learning from that decree that Ms. Ford had custody of the children whom Mr. Woodmore fathered—including the daughter sitting with Mr. Woodmore‘s father— and that Ms. Ford wanted the children brought to her in the witness room, the court resolved the dispute by directing the marshals to bring the children to Ms. Ford, their mother. The “reasonable inferences” to be drawn from these “outward manifestations” are that the district court was merely attempting to efficiently resolve a dispute in its courtroom that had the potential to affect the delivery of forthcoming witness testimony and that the court acted without partiality in its efforts to do so. Nickl, 427 F.3d at 1298. Indeed, even if the district court had handled the dispute in a “stern and short-tempered” manner—which it did not—its actions would seemingly have been immune from allegations of bias. Id.
Although Mr. Woodmore makes many assertions as to how the district court could have better handled the situation, none of these assertions are relevant to our judicial bias analysis under the Due Process Clause. We are tasked only with determining whether “sufficient factual grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question the judge‘s impartiality.” Id. In this case, no reasonable, objective person would conclude that the district court was exhibiting bias towards the government by proactively and efficiently resolving a custody dispute that threatened to imperil the delivery of witness testimony in the trial over which it presided. Finally, while Mr. Woodmore characterizes the district court‘s use of the U.S. Marshals Service as an “extraordinary act” that demonstrated bias, it is beyond peradventure that there is nothing improper about a district court using the U.S. Marshals Service to enforce courtroom decorum so that testimony may be delivered in an orderly fashion. See Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985) (“[I]t is the judge‘s responsibility to exercise control over the courtroom and take security precautions during a trial. . . . Usually this sort of thing is delegated to the United States Marshal or to court security officers . . . .“), vacated on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138 (1986); see also Coando v. Westport Resources, 85 F. App‘x 59, 62-63 (10th Cir. 2003) (holding that a district court judge did not demonstrate bias against a plaintiff by allegedly arranging for at least fifteen United States Marshals to sit and stand around the plaintiff in the courtroom becаuse these actions were “steps to preserve courtroom decorum“).4
Therefore, we conclude that Mr. Woodmore‘s constitutional contention of judicial bias is without merit. The district court‘s conduct did not violate Mr. Woodmore‘s due process rights. Accordingly, Mr. Woodmore cannot even surmount the first hurdle of the plain-error standard on his constitutional claim: a showing of error.
b
Mr. Woodmore next argues that “[t]he district court‘s actions also violated the more stringent statutory requirement for recusal set forth in
In our view, Mr. Woodmore‘s challenge under the federal recusal statute fails because he has not adequately briefed his argument. Undеr the doctrine of appellate-briefing waiver, a litigant “may waive appellate review of an issue by not arguing it—or arguing it in an inadequate manner—in one‘s opening brief.” See In re Syngenta AG MIR 162 Corn Litig., 61 F.4th 1126, 1181 (10th Cir. 2023). This rule applies to arguments that “are advanced in an opening brief only ‘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)). “[C]ursory statements, without supporting analysis and case law, fail to constitute the kind of briefing that is necessary” to preserve an issue for our review. Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007); see also Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (“Arguments not clearly made in a party‘s opening brief are deemed waived.“).
The doctrine of appellate-briefing waiver applies with full force to Mr. Woodmore‘s statutory challenge. Mr. Woodmore‘s argument under
* * *
In sum, either on constitutional or statutory grounds, Mr. Woodmore‘s arguments for judicial bias fail to carry the day. And, accordingly, we reject them.
B
Mr. Woodmore next argues that the district court made two instructional errors. First, he argues that the district court erred by issuing an instruction that an attorney may have the right to interview witnesses. Second, Mr. Woodmore argues that the district court erred by not including a definition for the term “methamphetamine (actual)” in the instructions. We address each of Mr. Woodmore‘s arguments below and conclude that they are unavailing.
1
“We review the jury instructions de novo and view them in the context of the entire trial to determine if they accurately state the governing law and provide the jury with an accurate undеrstanding of the relevant legal standards and factual issues in the case.” United States v. Freeman, 70 F.4th 1265, 1278 (10th Cir. 2023) (quoting United States v. Thomas, 749 F.3d 1302, 1312 (10th Cir. 2014)). “In doing so, we consider whether
“[A] trial judge is given substantial latitude and discretion in tailoring and formulating the instructions so long as they are correct statements of law and fairly and adequately cover the issues presented.” United States v. Wood, 207 F.3d 1222, 1235 (10th Cir. 2000) (quoting United States v. Pack, 773 F.2d 261, 267 (10th Cir. 1985)). “We do not require a district court to give another instruction ‘if it would simply give the jury a clearer understanding of the issues.‘” United States v. Murry, 31 F.4th 1274, 1293 (10th Cir. 2022) (quoting United States v. Williamson, 746 F.3d 987, 990 (10th Cir. 2014)). “The instructions as a whole need not be flawless, but we must be satisfied that, upon hearing the instructions, the jury understood the issues to be resolved and its duty to resolve them.” United States v. Ransom, 642 F.3d 1285, 1288 (10th Cir. 2011) (quoting Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999)). If we determine that the district court erred in instructing the jury, “instructional errors are subject to harmless error review.” United States v. Benvie, 18 F.4th 665, 670 (10th Cir. 2021).
2
a
Mr. Woodmore challenges the district court‘s instruction on the “Right of Attorney to Interview Witnesses.” The challenged instruction delivered to the jury read:
RIGHT OF ATTORNEY TO INTERVIEW WITNESSES
An attorney may have the right to interview witnesses for the purpose of learning the testimony those witnesses will give. The fact that a witness has talked to an attorney and told the attorney what he or she would testify to does not, by itself, reflect adversely on the truth of the testimony of the witness.
R., Vol. I, at 453. Mr. Woodmore first states that he preserved his objection to this instruction at trial. He then argues that the instruction was erroneous because “[n]o attorney has ‘the right’ to meet with witnesses before trial” and, instead, that “it was the witnesses’ choice to meet with federal prosecutors before Mr. Woodmore‘s trial.” Aplt.‘s Opening Br. at 21. Further, Mr. Woodmore contends that the instruction prevented the jurors from assessing whether “the witnesses’ decisions [i.e., choices] to meet with the [government] to discuss their testimony in advance of Mr. Woodmore‘s trial reflected their bias in favor of the [government].” Id.6
i
As an initial matter, Mr. Woodmore has not preserved his appellate challenge to the “Right of Attorney to Interview Witnesses” instruction. This challenge is effectively waived because Mr. Woodmore failed to raise the specific theories underlying the challenge before the district court, and he does not argue for plain-error review on appeal. See, e.g., United States v. McBride, 94 F.4th 1036, 1045 (10th Cir. 2024) (“Because [Defendant] both failed to preserve [his] arguments below and failed to argue plain error here, [his] arguments have ‘come to the end of the road and [are] effectively waived.‘” (last alteration in original) (quoting Fish v. Kobach, 840 F.3d 710, 729-30 (10th Cir. 2016))).
At trial, Mr. Woodmore only objected on the bases that (1) the instruction was not a Tenth Circuit Pattern Instruction and (2) the second sentence of the instruction “would [not] fit this situation.” R., Vol. IV, at 895. Mr. Woodmore‘s trial counsel explicitly stated that “certainly [he] ha[d] no problem with the court instructing that an attorney has the right to interview witnesses.” Id. (emphasis added). When asked if either of the sentences “contain[ed] [an] inaccurate statement[] of the law,” Mr. Woodmore‘s counsel replied, “[n]ot necessarily, your Honor. I do know that this is not a pattern instruction.” Id. at 895-96.
Mr. Wоodmore now argues on appeal that the instruction was erroneous because “[n]o attorney has ‘the right’ to meet with witnesses before trial” and, instead, that “it was the witnesses’ choice to meet with federal prosecutors before Mr. Woodmore‘s trial.” Aplt.‘s Opening Br. at 21. Yet this is precisely the proposition that Mr. Woodmore‘s counsel indicated that he had “no problem with” before the district court. R., Vol. IV, at 895. In other words, in the district court, Mr. Woodmore did not lodge an objection to the attorney-right language of the instruction—thus forfeiting any such objection. And because he does not advance the objection on appeal under the plain-error framework, he has effectively waived it.
To be sure, Mr. Woodmore stresses that he “specifically objected to the second sentence of the instruction,” Aplt.‘s Reply Br. at 10—when remarking that the sentence did not “fit this situation,” R., Vol. IV, at 895—and he contends that this objection preserved his appellate argument that the instruction “limited the jurors’ ability to assess witness credibility adversely based on the witness having interviewed with an attorney before trial,” Aplt.‘s Reply Br. at 10. Seemingly with the aim of providing supportive context, Mr. Woodmore directs us to the following passage:
I really don‘t believe that the second sentence would fit this situatiоn.
That if a witness has told somebody here she would testify -- what he or she would testify to is not by itself reflective as adverse to the testimony of the witness.
R., Vol. IV, at 895 (emphasis added). However, we reject Mr. Woodmore‘s preservation contention. We would be hard pressed to conclude that this passage preserved any objection—let alone the specific objection that Mr. Woodmore advances on appeal.
Specifically, under the federal rules, in challenging jury instructions, a party “must inform the court of the specific objection and the grounds for the objection.”
In this passage, Mr. Woodmore merely noted enigmatically that the second sentence did not “fit this situation,” without offering any legal theory for why this was so. And though Mr. Woodmore suggests to the contrary, the italicized language in the passage does not offer such a theory. Indeed, it appears to be nothing more than a paraphrase by Mr. Woodmore‘s counsel of the gist of the second sentence in an attempt (however weak) to bolster his lack-of-fit point. More pointedly, the language of this passage (including the italicized portion) does not use the term “credibility” or say anything about the second sentence having the improper effect of limiting jurors’ ability to assess witnesses’ credibility based on their decision to meet with the government regarding their testimony. Therefore, we cannot conclude that Mr. Woodmore‘s objection to the second sentence had the effect of preserving the prevention argument that he advances on appeal. And because Mr. Woodmore does not press this argument under the plain-error rubric on appeal, it is effectively waived.
Lastly, if the foregoing were not enough (and it is) to establish that Mr. Woodmore has forfeited and effectively waived his appellate challenge to the instruction at issue, there is the matter of Mr. Woodmore‘s failure to respond affirmatively when asked by the cоurt whether either of the two sentences of the instruction were an incorrect legal statement. Recall that when asked if either of the sentences of the instruction “contain[ed] [an] inaccurate statement[] of the law,” Mr. Woodmore‘s counsel responded, “[n]ot necessarily, your Honor.” R., Vol. IV, at 895 (emphasis added). As we have noted, “the purpose of the objection is to give the court an opportunity to correct any mistake.” Medlock, 164 F.3d at 553; accord Bader, 678 F.3d at 867; Davoll v. Webb, 194 F.3d 1116, 1140 (10th Cir. 1999).
Mr. Woodmore‘s negative response to the court‘s direct inquiry regarding whether either of the two sentences of the instruction were legally flawed reduced to almost the vanishing point the court‘s opportunity to correct any legal mistake in the sentences. Contrary to the suggestion of Mr. Woodmore, it is of no moment—for forfeiture-effective-waiver purposes—whether Mr. Woodmore‘s negative response amounted to an outright “concession” that the sentences were free from
In sum, Mr. Woodmore‘s challenge to the “Right of Attorney to Interview Witnesses” instruction is effectively waived because Mr. Woodmore failed to raise the specific theories underlying that challenge before the district court, and he does not argue for plain-error review on appeal. See, e.g., McBride, 94 F.4th at 1045.7
ii
Even if we were to overlook Mr. Woodmore‘s waiver, his challenge nonetheless would fail under our demanding plain-error rubric.8 Mr. Woodmore cannot establish that the district court erred at the first step of that rubric. In this regard, Mr. Woodmore‘s challenge to the instruction is essentially identical to Calvin‘s challenge in his appeal,9 and we resolved that challenge against Calvin. See Calvin Woodmore, 127 F.4th at 214-15. Specifically, in Calvin Woodmore, we held that the “Right of Attorney to Interview Witnesses” instruction that the court delivered in the Woodmore brothers’ trial was not legally erroneous, did not prejudice defense counsel, and did not prevent the jury from evaluating witness
credibility. See id. at 215-19. On the merits, we would reach the same conclusion as to Mr. Woodmore‘s challenge. A more fulsome explanation of why we affirm the district court‘s delivery of the “Right of Attorney to Interview Witnesses” instruction is provided in Calvin Woodmore. See id. at 214-19. Since Mr. Woodmore‘s challenge to the instruction is essentially identical to the one lodged in Calvin Woodmore, our reasoning in that case controls and wе must affirm the delivery of the instruction.
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In sum, we conclude that Mr. Woodmore has effectively waived his challenge to the “Right of Attorney to Interview Witnesses”
b
Mr. Woodmore last argues that the district court abused its discretion “by declining to define methamphetamine (actual) for the jury.” Aplt.‘s Opening Br. at 24 (bold typeface omitted). He avers that “[w]ith no guidance as to how to calculate methamphetamine (actual), the jury was left in the dark” and that the jurors “may have interpreted the inclusion of the term ‘actual’ in the phrase ‘methamphetamine (actual)’ [in the court‘s description of Count One of the Indictment] as a means of distinguishing between real methamphetamine and some substance with a different chemical makeup.” Id. at 25. Relatedly, Mr. Woodmore argues, on plain-error review, that under Apprendi v. New Jersey, 530 U.S. 466 (2000) we should “vacate [his] life sentence” on Count Two “for the independent reason that there is no jury finding that Mr. Woodmore distributed 50 grams or more of methamphetamine (actual) as necessary to trigger a maximum sentеnce of life imprisonment instead of 40 years.” Id. at 27 (bold typeface omitted). Lastly, he raises a plain-error challenge to the absence of the term “actual” in the elemental instruction for Count Two.
The government argues in response that “a district court need not ‘define a statutory term or phrase that carries its natural meaning,‘” Aplee.‘s Resp. Br. at 27 (quoting United States v. Robinson, 435 F.3d 1244, 1249 (10th Cir. 2006)), and that “‘[m]ethamphetamine (actual)’ is a term that carries its natural meaning,” id. The government also points to evidence adduced at trial to rebut Mr. Woodmore‘s contention that the jury was “left in the dark” as to how to calculate methamphetamine (actual). Id. at 28-29. As to the Apprendi challenge, the government argues that “[t]he jury found [Mr.] Woodmore guilty as charged” and “necessarily [found] that he had distributed at least 50 grams of methamphetamine.” Id. at 31.
i
We conclude that the district court did not abuse its discretion by failing to charge the jury with a definitional instruction for the term “methamphetamine (actual).” Mr. Woodmore‘s challenge to this instruction is materially identical to a challenge made by Calvin to the same instruction in his appeal, and we resolved that challenge against Calvin. See Calvin Woodmore, 127 F.4th at 210-14.10 In particular, we determined that a reasonable juror would have understood that the term “methamphetamine (actual)” in the court‘s instructions meant “purе” methamphetamine based on the evidence adduced at trial of purity weights of multiple samples of gross methamphetamine. Id. at 211-12. Our reasoning was rooted in the ordinary meaning of the term “actual” as it would have been understood based on the evidence presented at trial. Id. at 212-13. We also noted that, even if the definitional instruction would have enhanced the jury‘s understanding of the term, we do not require a district court to give another instruction if it would simply give the jury a clearer understanding of the issues. Id. at 213. On the merits of Mr. Woodmore‘s challenge, our reasoning would be the same.
ii
Next, as to Mr. Woodmore‘s Apprendi challenge,11 which he brings on plain-error review, he has not identified an error by the district court to satisfy the first prong of that review standard. With respect to Count Two, the jury was read the following elemental instruction:
To find Defendant Early Woodmore guilty of Count Two of the Indictment, you must be convinced that the Government has proven each of the following beyond a reasonable doubt:
First: Defendant Early Woodmore knowingly or intentionally distributed a controlled substance as charged;
Second: The substance was in fact methamphetamine; and
Third: The amount of methamphetamine distributed by Defendant Early Woodmore was at least 50 grams.
R., Vol. I, at 462 (emphasis added). Mr. Woodmore argues that “[t]he drug quantity of 50 grams or more of methamphetamine (actual) is a fact that increases the penalty for the distribution of methamphetamine offense charged in Count Two” and that “this drug quantity was not submitted to the jury that convicted Mr. Woodmore.” Aplt.‘s Opening Br. at 27-28. But later in his argument Mr. Woodmore admits that
the government presented evidence at trial to the jury that Mr. Woodmore distributed more than 50 grams of methamphetamine. See Aplt.‘s Opening Br. at 28; R., Vol. IV, at 122, 137 (adducing evidence that Mr. Woodmore distributed 54.5 grams of pure methamphetamine in a November 6, 2018, controlled transaction with a confidential source). While Mr. Woodmore baldly labels this testimony as “uncorroborated” and “very close to the threshold line of 50 grams,” Aplt.‘s Opening Br. at 28, the testimony nonetheless contradicts his argument that a drug quantity exceeding 50 grams was not submitted to the jury. Furthermore, the government presented additional evidence at trial tying “439.9 gross grams, [or] approximately one pound” of pure methamphetamine to Mr. Woodmore based on phone conversations between Mr. Woodmore and Ms. Adcock as the methamphetamine was en route in the mail. R., Vol. IV, at 832; see id. at 856-62. Based on these two pieces of evidence, the jury could have concluded beyond a reasonable doubt that more than 50 grams of methamphetamine was distributed by Mr. Woodmore, in satisfaction of the third element in Count Two. Therefore, since Mr. Woodmore cannot even satisfy the first prong of the plain-error standard—a
iii
Mr. Woodmore also takes issue with the absence of the term “actual” in the elemental instruction for Count Two, raising a plain-error challenge. See Aplt.‘s Opening Br. at 24 (“[T]he elemental instruction for Count Two did not include the term ‘actual.‘” (bold typeface omitted)); R., Vol. I, at 462. However, the court did not err—let alone clearly or obviously err—by not including the term in the Count Two instruction. To be sure, as with Count One, the indictment used the term “actual” in Count Two. See R., Vol. I, at 100 (charging in Count Two that Mr. Woodmore “knowingly and intentionally distribute[d] 50 grams or more of methamphetamine (actual)“). And, as it did with the elemental language of Count One, the court could have chosen, in its discretion, to use the term in the elemental language for Count Two. See id. at 458 (using the term “actual” in the elemental language for Count One).
However, it was hardly error for the court not to do so. The statute forming the basis for the offense in Count Two does not use the term “actual.” As relevant here, in order to establish a defendant‘s guilt of that offense, the government simply needed to prove that the defendant distributed 50 grams or more of methamphetamine.
Moreover, the discrepancy in the elemental language of Count One (using the term “actual“) and Count Two (lacking the term “actual“), would not have been appreciably misleading for the jury. That is because, as we have addressed supra in this subpart b, and discussed at length in Calvin Woodmore, see 127 F.4th at 211-14, a reasonable juror would have understood that the term “methamphetamine (actual)” in the court‘s instructions means “pure” methamphetamine. And, so, when the elemental instruction of Count Two referred to the term “methamphetamine,” without any qualifying language indicating that it was less than pure, a reasonable jury would have understood the same substance was being discussed in both Count One and Count Two.12 And lest it be forgotten,
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In sum, we reject Mr. Woodmore‘s various challenges related to the “methamphetamine (actual)” instruction.
III
For the foregoing reasons, we AFFIRM the district court‘s judgment of conviction.