UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANCIS WOODY, Defendant - Appellant.
No. 21-2007
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
August 19, 2022
MORITZ, EBEL, and KELLY, Circuit Judges.
PUBLISH. Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CR-03902-JB-1). FILED. Christopher M. Wolpert, Clerk of Court.
Todd B. Hotchkiss, Albuquerque, New Mexico, for Defendant-Appellant.
Raquel Ruiz-Velez, Assistant United States Attorney (Fred J. Federici, Acting United States Attorney, with her on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.
Before MORITZ, EBEL, and KELLY, Circuit Judges.
In August 2019, Defendant-Appellant Francis Woody was tried and convicted of one count of aggravated sexual abuse in violation of
Evidence presented against Mr. Woody at trial included incriminating statements he made during two separate encounters with federal agents, as wеll as a doctor‘s testimony that one of Mr. Woody‘s victims
I. BACKGROUND
A. Factual Background
In October 2016, Jane Doe 1 was an eight-year-old member of the Navajo Nation who lived with her mother and stepfather Mr. Woody in Ojo Encino, New Mexico, most of the time. While temporarily staying with her father in Torreon, New Mexico, Jane Doe 1 told her father that Mr. Woody had been sexually abusing her. Her father brought her to a hospital, where she was examined in the emergency room by Dr. Stephen Pilon. Dr. Pilon took Jane Doe 1‘s medical history, at which point Jane Doe 1 told Dr. Pilon that Mr. Woody had been molesting her by kissing her and touching her genitals, with the last incident of abuse occurring about 30 days prior to the hospital visit. Dr. Pilon examined Jane Doe 1 and found no signs of physical injury. He then reported the sexual abuse to Navajo Nation Social Services, which referred the case to the Federal Bureau of Investigation (FBI).
On April 25, 2018, FBI Special Agents Ross Zuercher and Thaddeus Clancy sought out Mr. Woody to follow up on the report and located him at his niece‘s house in New Mexico. The agents drove an unmarked car and were dressed in plain clothes, with their firearms concealed. Upon arriving at the house, they saw a man lying under a car in the front yard, performing repairs. They approached the man and identified themselves as FBI agents looking for Mr. Woody. The man identified himself as Mr. Woody. Agent Zuercher asked Mr. Woody if he would speak to them and suggested going somewhere with more privacy than the front yard, where Mr. Woody‘s girlfriend was also present. Mr. Woody agreed and led the agents inside his niece‘s mobile home. The agents sat on one couch in the living room while Mr. Woody sat on the couch closer to the door, three or four feet away from the agents. The ensuing conversation was recorded by Agent Zuercher.
After preliminary questioning and general discussions about Mr. Woody and his family, Agent Zuercher asked Mr. Woody about the specific claims of abuse made by Jane Doe 1. Mr. Woody denied the allegations at first. Agent Zuercher told Mr. Woody that if the abuse was “a one-time thing,” it could be “explained away” and would be “no big deal.” Supp. R. Vol. II, Exh. 3A at 30:35-31:20, 21:36-31:41. Mr. Woody said that he might have done it when he was drunk because he could not remember any of the alleged abuse. Agent Zuercher then assured Mr. Woody that he would not be arrested that day, but emphasized that the agents needed “to know what happened that night just so we can make sure that we‘ve covered everything that we needed to cover.” Id. at 37:23-37:38. Mr. Woody eventually admitted that he once touched and partially penetrated Jane Doe 1‘s vagina with his finger. At Agent Zuercher‘s request, Mr. Woody drew a diagram of the penetration and wrote an apology letter to Jane Doe 1. Mr. Woody denied any other instances of abuse against Jane Doe 1 or another alleged victim, however. The agents told Mr.
After this April 25 interview, Agent Zuercher spoke with Jane Doe 2, whose mother had been married to Mr. Woody for about ten years until their separation in May 2006, whеn Jane Doe 2 was approximately thirteen years old. The three lived on the Navajo Nation in New Mexico during the marriage. Jane Doe 2 recalled multiple instances where she was sexually abused as a child by Mr. Woody, the earliest being a time when he touched her vagina over her clothes when she was about six years old. The abuse continued until Jane Doe 2 and her mother left Mr. Woody‘s house in 2006.
After interviewing Jane Doe 2, Agent Zuercher contacted Mr. Woody and asked him to meet again for more questioning. Mr. Woody agreed and they scheduled an October 23, 2018, meeting at a state police station in Cuba, New Mexico, approximately thirty miles from Mr. Woody‘s town. When Mr. Woody arrived at the station at 9:00 AM on October 23, Agent Zuercher let him in and shook his hand. He also introduced Mr. Woody to Agent Marcus McCaskill, an FBI polygraph examiner. Both agents were in plain clothes, and Agent Zuercher‘s weapon was concealed while Agent McCaskill was unarmed. Their badges were likewise not visible. Mr. Woody was not patted down, searched, handcuffed, or otherwise restrained.
Agent McCaskill led Mr. Woody to an interview room where the polygraph equipment had been set up. Agent McCaskill closed the door to the room behind them but did not lock it; Agent Zuercher waited outside the room. Agent McCaskill and Mr. Woody sat down facing each other at the table with the equipment. Agent McCaskill explained to Mr. Woody that he would make sure Mr. Woody understоod his rights and confirmed that Mr. Woody was still willing to take the polygraph test. Agent McCaskill also told Mr. Woody that he was free to leave at any time if he did not wish to waive his rights or take the polygraph examination. Agent McCaskill then showed Mr. Woody a standard advice-of-rights form that explained the rights set forth in Miranda v. Arizona, 384 U.S. 436 (1966). Agent McCaskill read portions of the form aloud and explained it to Mr. Woody. After going through the form, Agent McCaskill asked Mr. Woody if he understood his rights, and Mr. Woody said that he did.
Next, Agent McCaskill asked Mr. Woody if he wanted to answer questions without an attorney present. Mr. Woody twice responded, “I guess,” and both times Agent McCaskill told him that he needed a clearer answer than that, stating, “If you want an attorney, if you don‘t want to answer questions today, then thаt‘s your right.” R. Vol. III at 101. In response to Agent McCaskill‘s request for a yes or no answer to whether Mr. Woody would answer questions without counsel, Mr. Woody said, “I will.” Id. at 102. Mr. Woody also signed the advice-of-rights form, which included a waiver of his Miranda rights, on Agent McCaskill‘s computer screen.
Agent McCaskill then pulled up the FBI‘s separate consent form for polygraph interviews and went over it with Mr. Woody. He reiterated that Mr. Woody did not have to take the polygraph and could leave at any time. Mr. Woody signed the form and agreed to continue with the polygraph examination.
With the forms sorted out, Agent McCaskill began asking questions, but did not yet begin the polygraph test. He first asked Mr. Woody about his background,
After the questioning and at the agents’ request, Mr. Woody wrote an apology letter to Jane Doe 2. The agents shook his hand and thanked him for talking to them. Mr. Woody then left the station.
B. Procedural Background
A grand jury charged Mr. Woody with aggravated sexual abuse of Jane Doe 1, in violation of
Prior to his jury trial, Mr. Woody filed motions to suppress the statements he made during both the April 25 encounter with agents and the October 23 encounter with agents, asserting that the agents violated his constitutional rights in obtaining the statements. The government opposed the motions, and the district court denied them.
Separately, the government sought to introduce testimony from Dr. Pilon regarding Jane Doe 1‘s statements identifying Mr. Woody as her abuser. The government asserted that this testimony was admissible under the hearsay exception for statements made for the purpose of medical diagnosis. See
As a result, during Mr. Woody‘s two-day trial in August 2019, the jury heard evidence of Mr. Woody‘s admissions to the agents and Jane Doe 1‘s identification of him as her abuser to Dr. Pilon. The jury convicted Mr. Woody of all three charged counts.
After the trial, a Presentence Investigation Report (PSR) was prepared for Mr. Woody‘s sentencing. It calculated a total offense level of 43 and a criminal history category of I, resulting in a recommended sentence of life imprisonment under the federal sentencing guidelines. Mr. Woody asked the district court to vary downward to a sentence of 30 years based on sentencing factors such as his age, good relationship with his family, and work ethic. The government sought a life sentence based on the PSR recommendation and the
On February 5, 2021, Mr. Woody filed a timely appeal of his convictions and his sentence, which we now review.
II. DISCUSSION
Mr. Woody raises four distinct issues to this court. He appeals the denial of his motion to suppress the statements he made during the April 25 FBI interview, the denial of his motion to suppress his October 23 statements to the FBI agents,
A. Motion to Suppress April 25 Statements
Mr. Woody first argues that the district court erred in denying his motion to suppress the statements he made when the FBI agents interviewed him at his niece‘s home on April 25, 2018, because his Fourth Amendment rights were violated when the agents seized him without his consent.1 In reviewing the denial of a motion to suppress, we examine the district court‘s legal determinations de novo and its factual findings for clear error, United States v. Cook, 599 F.3d 1208, 1213 (10th Cir. 2010), though the facts here arе largely undisputed. We also “view[] the evidence in the light most favorable to the district court‘s [factual] finding.” Id.
The Fourth Amendment protects citizens against “unreasonable searches and seizures.”
1491, 1500 (10th Cir. 1996)). Mr. Woody asserts that his encounter with FBI agents on April 25 was an investigative detention—which required at least reasonable suspicion to be constitutional, see id.—while the government argues that the encounter was consensual and thus did not imрlicate the Fourth Amendment. Because the government has not asserted the existence of reasonable suspicion either on appeal or to the district court below, the only question before us is whether the encounter was consensual. If not, the encounter was an investigative detention by the agents without reasonable suspicion, thereby violating Mr. Woody‘s Fourth Amendment rights.2 See Florida v. Royer, 460 U.S. 491, 500 (1983) (holding that the government bears the burden of demonstrating reasonable suspicion).
In order to determine whether this encounter was consensual, we must “consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991). This
[(1)] the location of the encounter, particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers;
[(2)] whether the officers touch or physically restrain the defendant; [(3)] whether the officers are uniformed or in plain clothes; [(4)] whether their weapons are displayed; [(5)] the number, demeanor and tone of voice of the officers; [(6)] whether and for how long the officers retain the defendant‘s personal effects such as tickets or identification; and [(7)] whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent.
United States v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006) (quoting United States v. Spence, 397 F.3d 1280, 1283 (10th Cir. 2005)). No single factor is dispositive, but the “strong presence of two or three factors” may be sufficient to support the conclusion a seizure occurred. Id. at 1284–85 (quoting Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1203 (10th Cir. 2006)). We thus examine the presence of each factor in this case, as well as other facts that Mr. Woody highlights to argue that the encounter was a seizure.
i. Location of the encounter
As Mr. Woody notes, his conversation with the FBI agents on April 25 took place inside his niece‘s home, out of public view. This factor thus weighs in Mr. Woody‘s favor to show that the encounter was not consensual. Id. That said, we think the weight of this factor is minimal given that Mr. Woody specifically agreed to speak with the agents inside. See United States v. Spence, 397 F.3d 1280, 1284 (10th Cir. 2005) (finding that the defendant‘s “agreement to allow the agents inside his home weighs toward the conclusion that the encounter was voluntary“).
Mr. Woody also complains that the location of the agents’ initial approach, in the home‘s front yard where Mr. Woody was lying under a car, weighs against a finding of consent because “the FBI agents showed their authority by going onto private property without any permission” and “Mr. Woody could not just walk away as he was at someone else‘s private residence in the midst of repairing a vehicle.” Aplt. Br. at 47, 48–49. We do not find these facts relеvant to the analysis. We have already accounted for the fact that Mr. Woody was interviewed at a private residence, and the fact that he could not “walk away” since he was in the middle of car repairs does not mean a reasonable person would have felt unable to “decline the officers’ request or otherwise terminate the encounter” there. Bostick, 501 U.S. at 429.
ii. Touching and physical restraints
The only touching between the officers and Mr. Woody were their handshakes at the beginning and end of the interaction, which were certainly not gestures that would indicate a person was not free to terminate the encounter. Though the conversation—to which Mr. Woody agreed—took place inside the niece‘s house with the dоor closed, the record does not indicate that the door was locked, and indeed Mr. Woody was sitting closer to the door than the officers on the opposite couch. Thus, there were no physical restraints, and this factor does not weigh in favor of finding the encounter a seizure.
The officers were in plain clothes and never showed their weapons. This factor, too, favors finding that the encounter was consensual.
iv. Number and demeanor of officers
Mr. Woody does not contend that two officers were so many as to give a reasonable person the impression that he would be unable to decline their request to speak with them. Nor could he make such a contention, without more. See United States v. Jones, 525 F.3d at 1242 (stating that an encounter with four аgents did not weigh in favor of concluding that the suspect was seized in light of officers’ appearance and demeanor). Furthermore, the district court found that Agents Zuercher and Clancy “spoke to Woody throughout the interview in conversational and respectful tones.” R. Vol. I at 414. This factor thus does not favor seizure.
v. Retention of defendants’ personal effects
The agents here did not take any personal effects from Mr. Woody at any time, and so this factor is not relevant to our analysis.
vi. Advising of right to refuse
Mr. Woody emphasizes that the agents did not specifically inform Mr. Woody that he had the right to refuse to speak to them. This factor thus favors a finding of seizure, but it is by no means dispositive. To the contrary, “[t]here is no per se rule requiring such an advisement.” United States v. Little, 18 F.3d 1499, 1505 (10th Cir. 1994) (en banc) (citations omitted).
vii. Totality of the circumstances
Viewed collectively, the above factors are not sufficient to establish that a reasonable person in Mr. Woody‘s position would have felt that he “was not free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 439. The fact that the conversation took place inside a private residence and the fact that the agents did not specifically tell Mr. Woody he was free to leave are simply not enough to turn the encounter into an investigative detention, when accounting for other factors such as Mr. Woody‘s agreement to speak to the agents inside, the agents’ friendly demeanor and plain-clothes appearance, and the lack of any physical restraint on Mr. Woody.
That said, the above list of factors is non-exhaustive. Lopez, 443 F.3d at 1284. Mr. Woody argues that certain statements made by the agents during the encounter rendered it nonconsensual because they were deceptive.3 Specifically, he complains that Agent Zuercher lied to him by stating that it would be “no big deal” if Mr. Woody had abused Jane Doe 1 just one time. Aplt. Br. at 44–45. Agent Zuercher was indeed lying to Mr. Woody with this statement. Even one instance of child sexual abuse is a major crime, and Agent Zuercher said he was aware of that fact in
Nonetheless, we hold that Agent Zuercher‘s statement that one instance of abuse would be “no big deal” did not turn the consensual conversation into an investigative detention. Certain forms of deception by officers can be indicative of coercion, which would render consent to searches or seizures involuntary under the Fourth Amendment. See United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011). But “[n]ot all deceit and trickery is improper,” id. at 1280; the surrounding circumstances are significant to the analysis, and the operative question is whether “deceit or trickery is used to imply an individual has no ability to refuse consent.” Id. For example, in Harrison, the court found that an officer‘s false suggestion that there might be bombs in the defendant‘s apartment was coercive and vitiated the defendant‘s consent to a search of the apartment, because the defendant was left “with two options: (1) deny consent to search and accept the risk that a bomb had been planted in the apartment; or (2) consent to the search“—hardly a choice at all. Id.
In contrast, here, Agent Zuercher falsely telling Mr. Woody that one instance of abuse was “no big deal” did not affect Mr. Woody‘s ability to decline to talk. Agent Zuercher‘s only lie was to minimize the consequences of a confession. While this sort of deception may have ultimately induced Mr. Woody to keep talking, its mechanism for doing so was not to make a reasonable person feel he could not terminate the encounter; it was to make a reasonable person feel he had not so much to lose by continuing the encounter and being honest. In fact, depending on the circumstances, a reasonable person might feel freer to deсline to speak with police after being told that the alleged crime was “no big deal.” This type of lie did not invalidate Mr. Woody‘s consent. Thus, the “deception” here does not alter our conclusion that the April 25 encounter between Mr. Woody and the FBI agents was consensual and so did not implicate his Fourth Amendment rights.
B. Motion to Suppress October 23 Statements
In his other motion to suppress denied by the district court, Mr. Woody argued that his October 23, 2018, statements to the FBI agents must be excluded because the agents violated his Fifth Amendment right against self-incrimination.4 Here there is no genuine and material factual dispute, and we review the district court‘s legal conclusions de novo, Cook, 599 F.3d at 1213, and affirm the denial of Mr. Woody‘s motion.
The Fifth Amendment affords citizens the right to remain silent, to have an attorney present, and to bе informed of these rights when the individual is both (1) in custody and (2) subject to interrogation by police. Miranda v. Arizona, 384 U.S. 436, 477-79 (1966). There is no dispute here that Mr. Woody was interrogated without an attorney present when he spoke with Agent
time is disputed, however. Assessing whether an individual is in custody is a totality-of-the-circumstances inquiry involving many different factors. See United States v. Lamy, 521 F.3d 1257, 1259 (10th Cir. 2008). Though we have substantial doubts that Mr. Woody was in custody at all—which would mean his Fifth Amendment rights never attached—we need not wade into that fact-intensive issue because, even if he was in custody, Mr. Woody plainly waived his Miranda rights before making the incriminating statements at issue.
Citizens can waive their Miranda rights if the waivеr is “made ‘voluntarily, knowingly, and intelligently.‘” Smith v. Mullin, 379 F.3d 919, 932 (10th Cir. 2004) (quoting Miranda, 384 U.S. at 444). This requires that the waiver “was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and was “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” based on the totality of the circumstances. Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). “In determining whether rights were voluntarily waived, we consider: the suspect‘s age, intelligence, and education; whether the suspect was informed of his or her rights; the length and nature of the suspect‘s detention and interrogation; and the use or threat of physical force against the suspect.” United States v. Smith, 606 F.3d 1270, 1276 (10th Cir. 2010).
In advance of any questioning at the October 23 interrogation, Agеnt McCaskill displayed and explained a form detailing Mr. Woody‘s Miranda rights. Agent McCaskill then explicitly asked Mr. Woody if he wanted to answer questions without an attorney present. When Woody said, “I guess,” Agent McCaskill let Woody know that counsel could be appointed for him, but that he needed a clearer answer. After a second “I guess,” which Agent McCaskill again said was insufficient to waive the right, Mr. Woody eventually responded, “I will.” R. Vol. III at 100–02. This suffices as an unambiguous waiver of his right to an attorney. Mr. Woody then signed the advice-of-rights form, which contained a formal waiver of all his Miranda rights.5
Mr. Woody has not identified any facts that would render his waiver involuntary or unintelligent, nor do we see any in the record. Agent McCaskill thoroughly explained Mr. Woody‘s Miranda rights at the very beginning of the interrogation. There is no allegation of any deficiency in Mr. Woody‘s mental state or mental capacity. The agents never threatened to use or used any physical force against Mr. Woody. Mr. Woody argues only that his two responses of “I guess” to the waiver request, before the unambiguous “I will” response, “rendered the waiver of his Miranda rights invalid.” Aplt. Br. at 55–56. We are not persuaded. Clarifying whether the suspect is in fact waiving his rights does not take away from the suspect‘s
McCaskill made every reasonable effort to ensure Mr. Woody‘s uncoerced willingness to continue with the interrogation here.
Consequently, Mr. Woody‘s waiver of his Miranda rights at the beginning of the October 23 interview was valid. His Fifth Amendment rights were therefore not violated, and his subsequent incriminating statements were admissible, so we affirm the district court‘s denial of Mr. Woody‘s motion to suppress the October 23 statements below.
C. Admission of Dr. Pilon‘s Hearsay Statement
At the government‘s request, the district court admitted testimony about Jane Doe 1‘s statement to Dr. Pilon in which she identified Mr. Woody as the person who abused her. R. Vol. I at 345–46. Mr. Woody now challenges that evidentiary ruling by the district court, which we review for an abuse of discretion. United States v. Tome, 61 F.3d 1446, 1449 (10th Cir. 1995). “Our review is especially deferential when the challenged ruling concerns the admissibility of evidence that is allegedly hearsay.” Id.
“Hearsay is a statement, other than one made by the declarant while testifying at the trial or heаring, offered to prove the truth of the matter asserted. Under
district court agreed, that the testimony was nonetheless admissible under the well-established exception to the hearsay rule for a statement that is “made for—and is reasonably pertinent to—medical diagnosis or treatment” and “describes medical history; past or present symptoms or sensations; their inception; or their general cause.”
As Mr. Woody argues, “a declarant‘s statement relating the identity of the person allegedly responsible for her injuries is not ordinarily admissible under
Here, the district court applied Joe‘s rule and held that the identity of Jane Doe 1‘s abuser was “reasonably pertinent” to her diagnosis and treatment because it was “necessary to determine if [she was] in a safe environment or in danger of being abused again.” R. Vol. I at 346 (quoting United States v. Chaco, 801 F. Supp. 2d 1200, 1213 (D.N.M. 2011)). We agree. Mr. Woody was Jane Doe 1‘s stepfather, a relationship that put him in a position to continue abusing her. Knowing his identity
was necessary for Dr. Pilon to report the abuse to the proper authorities so that it could be investigated and halted.
Mr. Woody argues to the contrary that the sexual abuse occurred too long before the medical examination for the identity of the abuser to be reasonably pertinent, especially
Mr. Woody relies on one additional case to argue that Dr. Pilon‘s testimony about Jane Doe 1‘s identification of Mr. Woody was inadmissible: United States v. Charley, 189 F.3d 1251 (10th Cir. 1999). In Charley, the court held that the district court abused its discretion in admitting the testimony of an expert witness under
Mr. Woody argues that, like Dr. Ornelas in Charley, Dr. Pilon here was simply vouching for Jane Doe 1‘s credibility by testifying to her identification of Mr. Woody as her abuser. But Charley is inapposite for multiple reasons. First, Dr. Pilon was admitted as a fact witness rather than as a
Second, unlike Dr. Ornelas in Charley, Dr. Pilon‘s testimony at issue in this case did not amount to an “unconditional opinion that [the victim] was in fact sexually abused.” Id. at 1266. Dr. Pilon was merely repeating Jane Doe 1‘s own statement as a factual matter—hearsay, but admissible hearsay—and so was not “vouching” for her credibility by basing an expert opinion on her statements alone. Thus, Charley does not support a different result, and we find no abuse of discretion in the district court‘s admission of Dr. Pilon‘s testimony as to Jane Doe 1‘s statements.
D. Substantive Reasonableness of Sentence
The district court sentenced Mr. Woody to life imprisonment on each of the three counts, run concurrently, rejecting Mr. Woody‘s request for the statutory minimum sentence of 30 years. Mr. Woody appeals that sentence as substantively unreasonable.
We review the substantive reasonableness of a sentence for an abuse of discretion and “examine whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in
In its written sentencing opinion, the district court identified twenty-two factors that “put downward pressure on Woody‘s sentence,” including his age and lack of prior incarceration. R. Vol. I at 447. But it also identified fifty-three factors that “put upward pressure to keep Woody‘s sentence within the Guideline range and give a life sentence.” Id. at 450 (quotation marks omitted). Balancing these factors, the district court concluded that the life sentence was “sufficient, but not greater than necessary, to comply with the four purposes that
Those three facts do not demonstrate that the district court‘s thorough analysis of the relevant § 3553 factors and subsequent sentence of life was an abuse of discretion. Mr. Woody essentially asks us to redo the § 3553 analysis and reach a different conclusion than the district court. But we find no error in the district court‘s reasoning and do not second-guess its defensible discretionary assessment of the relevant factors. Thus, on this record, Mr. Woody has failed to rebut the presumption that the sentence was reasonable and we affirm the district court‘s imposition of a life sentence for Mr. Woody.
III. CONCLUSION
Based on the foregoing, we AFFIRM Mr. Woody‘s conviction on each count and
EBEL
Circuit Judge