United States v. Barrett (496 F.3d 1079, 2007)

BRISCOE, Circuit Judge.

Defendant Kenneth Barrett was convicted of using and carrying a firearm during and in relation to several drug-trafficking crimes, resulting in the death of a state law enforcement officer, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j), using and carrying a firearm during and in relation to the killing of a state law enforcement officer engaged in or on account of the performance of such officer’s duties, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j), and intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). In accordance with the jury’s verdict, Barrett was sentenced to life imprisonment without the possibility of release for the first two convictions, and to death for the third conviction. Barrett now appeals his convictions, as well as his death sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Factual background

On January 28, 1999, the District Court of Sequoyah County, Oklahoma, issued a warrant for Barrett’s arrest on charges of unlawful delivery of a controlled drug and failure to appear for jury trial. Although Barrett managed to avoid arrest during the ensuing months, state law enforcement officials were aware of his presence and continued to investigate his activities. In September of 1999, Clint Johnson, the supervising agent and field supervisor for the District Twenty-Seven Drug Task Force (Task Force), which encompassed Cherokee, Wagoner, Adair and Sequoyah Counties in Oklahoma, received information from a confidential informant (Cl) that Barrett was manufacturing and distributing methamphetamine at his residence. Johnson, using the information provided by the Cl, prepared an affidavit for a search warrant. On September 20, 1999, the District Court of Sequoyah County issued the requested search warrant for Barrett’s residence. The warrant authorized law enforcement officers to conduct the search “at any time of the day and/or night,” and to enter Barrett’s residence “without the normally required knocking and announcing ... due to the violent and unstable nature of ... BARRETT and the danger posed to law enforcement personnel by ... BARRETT and/or other unknown persons who may be present.” Aplee. Supp.App. at 3. The items to be seized included methamphetamine or other controlled dangerous substances, paraphernalia, drug manufacturing equipment and supplies, and written records and documents pertaining to drug manufacturing and distribution.

Johnson considered the search warrant to be “high risk” in nature. ,Tr. at 308. In particular, Johnson was aware that Barrett routinely carried firearms and had threatened to kill law enforcement officers if they “showed up at his residence.” Id. at 333. Further, Johnson was aware that Barrett’s residence was accessible only by a dead-end road, that several of Barrett’s relatives lived in residences nearby, and that there was little cover around the residence from which the search team could perform surveillance. Accordingly, Johnson contacted the Oklahoma Highway Patrol’s Tactical Team (Tact Team) for assistance in serving the warrant. The Tact Team was “highly trained and specialized in [serving] ... high risk search warrants ....” Id. at 307. Johnson and another Task Force leader met with Tact Team members to discuss the execution of the warrant. It was determined that the Tact Team would enter and secure the area first, and that the Task Force would then perform the actual search of Barrett’s residence.

The Tact Team met during the daylight hours of September 23, 1999, arid developed a plan for entering and securing Barrett’s residence. As part of this planning process, three members of the Tact Team drove by Barrett’s residence in an unmarked Ford Bronco during the early evening hours. Travis Crawford, Barrett’s cousin, was in the vicinity at the time of the drive-by and observed Barrett walk to the area of the front gate after the Bronco drove by his residence. Crawford spoke to Barrett and Barrett indicated he had seen the Bronco and knew it belonged to law enforcement officers. When Crawford told Barrett that the law enforcement officers would likely return, to serve the warrant, Barrett responded by saying “D.G.F.,” which, according to Crawford, meant “Don’t give a fuck.” Id. at 466. Further, Barrett told Crawford that “he was going out in a blaze of glory.” Id.

Using the informátion they observed during the drive-by, together with infori-mation provided by the Task Force, the Tact Team decided to execute the search warrant during the night with the hope that Barrett and any other occupants of the residence would be asleep. The Tact Team further decided that, because the front gate to Barrett’s property was locked, three of the Tact Team vehicles, two Ford Broncos and a marked highway patrol unit, would enter Barrett’s property by first driving north on a private driveway that lay to the east of Barrett’s property, and then driving west across the land and through a ditch, onto Barrett’s property. The occupants of those three vehicles, six Tact Team members in total, would then get out of their vehicles, walk on foot to the house, and enter through the front door. The Tact Team decided that a fourth unit, a marked highway patrol car, would stop at the.locked front gate of the property and that one of the occupants of that vehicle would remain.in that position to provide cover for the other team members, while the second and third occupants of that vehicle would climb over the gate, enter the property on foot, and watch the west side of Barrett’s house to prevent him from escaping to his mother’s residence, which was located adjacent to Barrett’s house. Finally, the Tact Team decided that a fifth unit, a white Ford Bronco, would enter the driveway of Barrett’s mother’s home.

At approximately 12:30 a.m. on the morning of September 24, 1999, the Tact Team met members of the Task Force at a highway intersection near Barrett’s residence. From there, the five Tact Team vehicles headed towards Barrett’s residence. The Task Force vehicles waited approximately two minutes before heading towards Barrett’s residence in order to give the Táct Team a chance to secure the area.

As the lead Tact Team vehicle, a white Ford Bronco, drove eastward on the gravel road that passed in front of Barrett’s residence, the driver, Trooper John Hamilton, observed a white male standing in the front yard of Barrett’s residence. Hamilton continued to observe the man, who was later determined to be Barrett’s son Toby, as he drove past Barrett’s residence and entered the private driveway to the east of Barrett’s residence. Hamilton then turned his vehicle westward towards Barrett’s house and entered a deep ditch that lay between Barrett’s residence and the property to the east, and approximately twenty to 'twenty-five yards away from Barrett’s residence.

Meanwhile, Troopers Gene ' Hise and Robert Darst, who arrived at the scene in the fourth Tact Team vehicle, climbed over the locked front gate, entered the yard in front of Barrett’s house, and yelled at Toby Barrett to get on the ground. Toby Barrett initially faded to comply, but ultimately got on- the ground. Trooper Darst then took custody of Toby Barrett and determined he was unarmed. While Toby Barrett was on the ground being handcuffed, he turned his head towards the house and screamed “Dad!” Id. at 1263.

As Hamilton’s vehicle exited the ditch and headed towards Barrett’s house, it began to receive gunfire that hit the middle of the windshield, at approximately “head level” of Hamilton and his passenger, Trooper David Eales. Id. at 538. The gunfire intensified as Hamilton drove closer to Barrett’s residence, and Hamilton was hit in the face with some object, either bullet fragments or flying glass from the windshield. As a result of the continuous gunfire, neither Hamilton nor Eales were able to turn on the vehicle’s emergency lights, as the Tact Team had originally planned for them to do.

The second Tact Team vehicle, a Ford Bronco occupied by Troopers Raymond Greninger and Ricky Manion, was less than a car length behind the first Tact Team vehicle. Unlike the first vehicle, the second vehicle had its emergency lights on, including a flashing strobe-type light on the sun visor and wig-wag headlights. The third Tact Team vehicle, a marked highway patrol unit driven by Trooper Hash, also had its emergency lights on, including a full light bar on top. The lights from the light bar were bright enough to light up the entire area of Barrett’s residence. This third vehicle was traveling less than a car length behind the second vehicle.

Hamilton’s vehicle ultimately came to a stop at or near the southeast corner of Barrett’s residence, and the second and third vehicles stopped slightly behind Hamilton’s vehicle. Hamilton fell between the front seats of his vehicle in an attempt to avoid the gunfire. Hamilton’s passenger, Eales, opened the front passenger door, got out of the vehicle, and began moving towards the rear of the vehicle. At some point before he arrived at the rear of the vehicle, Eales was struck by three gunshots.

Meanwhile, Hamilton threw a diversionary device out of the driver’s side window of his vehicle, causing a noticeable flash and loud bang. The flash and bang created a stoppage of gunfire, during which Hamilton got out of the driver’s side of his vehicle. Hamilton then moved towards the rear of his vehicle. As he did so, he was shot in the back of the left shoulder. When he reached the back of the vehicle, Hamilton observed Eales face down on the ground, with Manion attempting to assist him.

From the rear of the vehicle, both Hamilton and Manion were able to observe a man, later identified as Barrett, standing in the interior doorway of the residence holding a rifle. Hamilton fired two rounds at Barrett, but did not hit him. Manion moved from the rear of Hamilton’s vehicle to the east side of Barrett’s house. From a position behind a parked truck, Manion fired two short bursts of gunfire through the east window of Barrett’s home. Some of the shots fired by Manion struck Barrett in the lower body. Hamilton observed Barrett fall face down through the front doorway and drop his rifle. Hamilton approached and entered the house, told Barrett to get up, and Barrett responded that he could not because he had been shot. Hamilton, with the assistance of Troopers Manion and Hash, dragged Barrett out of the house and into the front yard. As the three troopers were dragging Barrett, another trooper, Danny Oliver, yelled at them that Barrett had a pistol tucked in the front of his waistband. Manion pulled Barrett’s arms out from underneath him, handcuffed him, and performed a quick pat-down. During the pat-down, Manion found the pistol that Barrett had tucked into the right side of his waistband. Hamilton, Manion and Greninger entered the house and confirmed there were no other persons inside.

After unsuccessfully attempting to provide first aid to Eales, Tact Team members transported him to a local hospital, where he was pronounced dead. An autopsy indicated that Eales suffered gunshot wounds to his chest, his left flank, and his right arm, all of which appeared to have occurred while Eales was facing away from Barrett. The gunshot wound to the chest entered the left side of Eales’ upper back, broke four of Eales’ ribs, perforated the left upper lung lobe, and ultimately struck Eales’ aorta, causing a quarter-inch hole. The injury to Eales’ aorta was determined to be irreparable and the cause of Eales’ death.

Investigation of the crime scene by law enforcement officers determined that Barrett fired approximately nineteen shots at law enforcement officers using a Colt Sporter .223 rifle. The rifle, which had a lethal range of approximately 541 to 595 yards, was equipped with three magazines that Barrett had taped together, giving him a total of ninety-one rounds available for use at the time the shooting incident began. A search of Barrett’s property, including his house and outbuildings, produced a variety of other firearms, including a fully loaded 12 gauge shotgun and a fully loaded .22 caliber pistol. The search also resulted in the seizure of a variety of materials related to the production and use of methamphetamine (e.g., coffee filters, hypodermic needles, digital scales, pseu-doephedrine, ephedrine tablets, iodine, plastic tubing, toluene). A search of Barrett’s person produced a plastic baggie containing red phosphorous, a lighter, and approximately $2100 in cash.

Procedural background

a) State criminal proceedings

On September 24, 1999, Barrett was charged by information in the District Court of Sequoyah County with one count of first degree murder and three counts of shooting with intent to kill. The information was subsequently amended to charge Barrett with one count of first degree murder, one count of shooting with intent to kill, and two counts of discharging a firearm with intent to kill. The case proceeded to trial in the fall of 2002, but ended in a hung jury on October 18, 2002. Barrett was retried in January and February of 2004. The jury rejected the first degree murder charge and instead found Barrett guilty of the lesser-included crime of first degree manslaughter. The jury also rejected the shooting with intent to kill charge and instead found Barrett guilty of the lesser-included offense of assault and battery with a dangerous weapon. The jury acquitted Barrett on the two charges of discharge of a firearm with intent to kill. On April 19, 2004, Barrett was sentenced to a term of imprisonment of twenty years on the manslaughter conviction and ten years on the assault and battery conviction, with the two terms to run consecutively. Barrett did not appeal his convictions or sentences.

b) Federal criminal proceedings

On September 23, 2004, a criminal complaint was filed against Barrett in the United States District Court for the Eastern District of Oklahoma charging him with eight criminal counts, including intentionally killing a state law enforcement officer engaged in the performance of the state law enforcement officer’s official duties, in violation of 21 U.S.C. § 848(e)(1). On November 9, 2004, a federal grand jury returned a three-count indictment against Barrett. Id., Doc. 9. Count 1 of the indictment charged Barrett with using and carrying a firearm during and in relation to drug trafficking crimes and possessing a firearm in furtherance of such drug trafficking offenses, resulting in death, in violation of 18 U.S.C. § 924(c)(1)(A) and (j). Count 2 charged Barrett with using and carrying a firearm in relation to a crime of violence, i.e., the killing of a state law enforcement officer engaged in or on account of the performance of such officer’s official duties, and possessing a firearm in furtherance of such crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j). Count 3 charged Barrett with intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). With respect to Count 3, the grand jury made the following “Special Findings”: (a) Barrett was 18 years of age or older at the time of the offense; (b) Barrett intentionally killed Eales, intentionally inflicted serious bodily injury that resulted in the death of Eales, intentionally participated in an act, contemplating that the life of a person would be taken and intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and Eales died as a direct result of the act, or intentionally and specifically engaged in an act of violence, knowing that the act created a great risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and Eales died as a direct result of the act; and (c) Barrett, in the commission of the drug trafficking offenses alleged in Count 3, and in escaping apprehension for a violation of said offenses, knowingly created a grave risk of death to one or more persons, to wit: John Hamilton, Jr., in addition to Eales. ROA, Vol. 1, Doc. 9 at 5-6.

On February 9, 2005, the grand jury returned a superseding indictment against Barrett. Although the superseding indictment included some amendments, it contained the same three basic counts as the original indictment. On February 15, 2005, the government filed notice of its intent to seek the death penalty with respect to all three counts with which Barrett was charged.

The case proceeded to trial on September 26, 2005. On the twenty-first day of trial, November 4, 2005, the jury found Barrett guilty of all three counts. In response to special interrogatories propounded by the district court, the jury found beyond a reasonable doubt that Barrett committed murder in connection with Counts 1 and 2 (i.e., that he committed the unlawful killing of Eales with malice aforethought). After a short break in the trial proceedings, the second-stage proceedings began on November 9, 2005. On November 17, 2005, at the conclusion of all the second-stage evidence, the jury found, in pertinent part, that Barrett was at least eighteen years old at the time of the offenses of conviction, and that, with respect to each of the three counts of conviction, he intentionally killed Eales. As for' the statutory aggravating factors, the jury found, with respect to Counts 1 and 2, that Barrett killed or attempted to kill more than one person, i.e., John Hamilton, Jr., and David Eales, in a single criminal episode, and committed the offenses after substantial planning and premeditation to cause the death of a person. With respect to Count 3, the jury found that Barrett, in the commission of the offense or in escaping apprehension for the offense, knowingly created a grave risk of death to one or more persons in addition to Eales, and that Barrett committed the offense after substantial planning and premeditation. As for the non-statutory aggravating factors, the jury found, with respect to all three counts of conviction, that Barrett caused injury, harm, and loss to the victim’s family, but rejected the government’s assertion that Barrett was likely to commit criminal acts of violence in the future which would be a continuing and serious threat in an institutional correctional setting to the lives or safety of other persons. As for mitigating factors, some or all of the jurors found the existence of the following factors with respect to all three counts:

• Barrett had accepted responsibility for the death of Eales from his previous conviction (found by five jurors with respect to each count);

• Barrett had been convicted and punished for the death of Eales (found by five jurors with respect to each count);

• Barrett, at the time of the shooting incident, had no prior felony convictions (found by all twelve jurors with respect to each count);

• Barrett was a father (found by all twelve jurors with respect to each count);

• Barrett was a loved son and stepson (found by all twelve jurors with respect to each count);

• Barrett was a good neighbor and friend (found by seven jurors with respect to each count);

• Barrett’s death would impact his child, family and friends (found by all twelve jurors with respect to each count);

• Barrett would not present a future danger to society by being imprisoned for life without possibility of release as demonstrated by his incarceration since September 24, 1999 (found by two jurors with respect to each count);

• That other factors in Barrett’s childhood, background or character mitigated against imposition of the death sentence (found by one juror with respect to Counts 1 and 2, and by two jurors with respect to Count 3);

• That Barrett never left his residence during 1999 (found by one juror with respect to each count); and

• That Sequoyah County Sheriff Johnny Philpot had mistreated Barrett when Barrett was seventeen years old (i.e., Philpot had an altercation with Barrett during which Philpot broke Barrett’s jaw) (found by six jurors with respect to each count).

Id. at 20-27. Ultimately, the jury found that sentences of life imprisonment without the possibility of release should be imposed with respect to Counts 1 and 2, and that a sentence' of death should be imposed with respect to Count 3.

On December 19, 2005, the district court conducted a sentencing proceeding during which it imposed the sentences recommended by the jury. Judgment was entered in the case on December 29, 2005.

II.

1. Did the district court err in denying the motion to suppress?

Prior to trial, Barrett moved to suppress evidence seized from his residence and surrounding property following the shooting, as well as all statements he made to law enforcement officers following his arrest. The district court denied Barrett’s motion to suppress, “except as to the guns seized under but not specified in the drug search warrant....” ROA, Vol. 1, Doc. 124 at 2. On appeal, Barrett contends the district court erred in denying his motion to suppress.

“In reviewing a district court’s denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government, accepting the district court’s factual findings unless clearly erroneous.” United States v. Trotter, 483 F.3d 694, 698 (10th Cir.2007) (internal quotation marks omitted). “We review de novo the ultimate question of the reasonableness of a search.” Id. Although violations of state law may be relevant in making this determination, such violations do “not, without more, necessarily [result] in a federal constitutional violation.” United States v. Mi-kulski, 317 F.3d 1228,1232 (10th Cir.2003).

The following factual findings were made by the magistrate judge after conducting an evidentiary hearing on Barrett’s motion to suppress, and Barrett has not challenged those findings on appeal:

Clint Johnson, an Oklahoma drug task force agent, secured a state court warrant to search the Defendant’s home for drugs. Agent Johnson had information that the Defendant had threatened “to kill the first cop through the door,” and that there were guns around the house, so,he sought the assistance of the Oklahoma Highway Patrol with entering and securing the Defendant’s home. The federal drug task force of the Drug Enforcement Agency also was notified because Agent Johnson anticipated there would be a methamphetamine lab to clean up at the scene, although the federal agents were not expected to participate in the raid itself. * * *

The Oklahoma State Bureau of Investigation was called in to investigate the shooting. Agency Vicky Jones (now Lyons) obtained another state court warrant to search the Defendant’s home as part of the crime scene. After that search was completed, Agent Beal [a Pittsburg County Sheriffs Deputy who was on detail with the Drug Enforcement Administration’s drug task force] and two other DEA task force agents executed the original drug search warrant because they arrived at the scene after the shooting and were considered to be less affected by it than the state agents.

ROA, Vol. 1, Doc. 105 at 2.

a) Failure of warrant to satisfy Oklahoma standards for nighttime warrant

Barrett first contends that the original search warrant issued for his residence (i.e., the one that -prompted the utilization of the Tact Team) was invalid because it failed to satisfy the conditions required under Oklahoma law for service of a nighttime warrant. More specifically, Barrett argues that, although Oklahoma law required the judge who issued the warrant to find a “likelihood that the property named in the search warrant w[ould] be destroyed, moved or concealed,” Okla. Stat. tit. 22 § 1230(3), it “is unreasonable to argue that all of the drug evidence which the officers anticipated finding would be destroyed or moved, especially considering the anticipation that besides drugs, ingredients and utensils for manufacturing would be found on the premises, and considering that there was an on-going investigation with no indication whatsoever that drug activity had or would cease.” Aplt. Br. at 20.

As a threshold matter, we note that Barrett never raised this issue below. Accordingly, the issue is subject to review only for plain error. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). Under the plain error doctrine, “we will reverse the judgment below only if there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted).

Turning to the merits of the issue, we conclude there was no error on the part of the district court, let alone plain error. At the time the search warrant for Barrett’s residence was issued and executed, Oklahoma law required search warrants “for occupied dwellings” to be “served between the hours of six o’clock a.m. and ten o’clock p.m., unless the judge fiound] the existence of at least one of’ three enumerated exceptions. Okla. Stat. tit. 22 § 1230. Barrett focuses exclusively on the third such exception, which encompasses cases in which the affiants are “positive that the property is ..in the place to be searched and ... there is likelihood that the property named in the search warrant will be destroyed, moved or concealed....” Okla. Stat. tit. 22 § 1230(3). He ignores, however, the first exception, which encompasses cases in which “[t]he evidence is located on the premises only between the hours of ten o’clock p.m. and six o’clock a.m.” Id. § 1230(1). Notably, the magistrate judge in this case found in his report and recommendation, and Barrett has not disputed below or on appeal, that “[t]he underlying affidavit set forth facts indicating that the only time drug evidence would be found [at Barrett’s residence] was at night.” ROA, Vol. 1, Doc. 105 at 11. Thus, it is clear that the first statutory exception was applicable in this case and allowed the judge who issued the search warrant to allow the warrant to be served at night time. In other words, there was no violation of Oklahoma state law, let alone a federal constitutional violation that would justify suppression of the evidence seized from Barrett’s residence. See Mikulski, 317 F.3d at 1232.

b) Failure of warrant to satisfy Oklahoma standards regarding executing officers

Barrett next complains that the search of his residence was improper because the original search warrant was executed by federal law enforcement officers (i.e., DEA task force members) rather than by Oklahoma state law enforcement officers. In support of his argument, Barrett points to Okla. Stat. tit. 22 § 1225(A), which provides, in pertinent part, that a search warrant must be issued “to a peace officer of this state.... ” Because Barrett failed to raise this issue below, it is subject to review only for plain error.

At the outset, we conclude that Barrett has failed to properly interpret § 1225(A). Specifically, the term “peace officer,” as used in the Oklahoma criminal statutes, is expressly defined to “meant ] any sheriff, police officer, federal law enforcement officer, or any other law enforcement officer whose duty it is to enforce and preserve the public peace.” Okla. Stat. tit. 21 § 99 (emphasis added). Applying that definition to § 1225(A), it is clearly permissible for an Oklahoma state magistrate to issue a search warrant to a federal law enforcement officer. Indeed, that is precisely what occurred here; the search warrant for Barrett’s residence was issued to not only state law enforcement officers, but also to “Special Agents and Task Force Officers of the Drug Enforcement Administration, Special Agent[s] with the Bureau of Alcohol, Tobacco and Firearms, or any other ... federal peace officer.” Aplee. Supp.App. at 2. In turn, Oklahoma law provides that “[a] search warrant may in all cases be served by any of the officers mentioned in its direction-” Okla. Stat. tit. 22 § 1227. Thus, we conclude it was permissible under Oklahoma law for the federal law enforcement officers mentioned in the search warrant to be involved in the execution of the warrant. In turn, we conclude there was no constitutional violation arising out of the federal officers’ involvement that would justify suppression of evidence seized during execution of the warrant.

c) Failure of warrant to comply with Fed.R.Crim.P. fl

Lastly, Barrett contends that, should we determine that the search was federal, rather than state, in character, then the warrant was invalid because it failed to comply with the requirements of Federal Rule of Criminal Procedure 41 “designed to protect the integrity of the federal courts or to govern the conduct of federal officers.” United States v. Millar, 543 F.2d 1280, 1283-84 (10th Cir.1976). Specifically, Barrett complains that the warrant was not requested by or issued to a federal officer, and failed to designate a federal magistrate to whom it should be returned. Again, there is no indication in the record that Barrett raised this issue below, and thus it is subject to review only for plain error.

“Generally, a warrant is not federal in character if no federal agents participated in obtaining the warrant or in conducting the search.” United States v. Gobey, 12 F.3d 964, 967 (10th Cir.1993). We have also suggested that a warrant will retain its “state character” if there was only “minimal ... federal involve-ment_” Millar, 543 F.2d at 1283. A review of the record on appeal indicates that is precisely the situation here. As noted, the warrant was requested by a state law enforcement officer, was issued by a state magistrate judge, and the original plan had been for only state law enforcement officers to execute the warrant. However, as a result of the shooting and its impact on the officers who had intended to execute the warrant, DEA task force agents were asked to actually perform the search. Notwithstanding this involvement of DEA task force agents, there was no evidence that a federal prosecution was envisioned at the time of the search. See United States v. Fort, 478 F.3d 1099, 1106 (9th Cir.2007) (holding that strictures of Rule 41 apply to local officials only if “from the beginning it was assumed a federal prosecution would result”) (internal quotation marks omitted). In light of these unique circumstances, we are not persuaded that the DEA agents’ involvement was sufficient to render the warrant federal in character.

d) Suppression on double jeopardy grounds

At the end of his discussion of the district court’s denial of his motion to suppress, Barrett suggests, in passing, that the evidence seized during the search of his residence should be suppressed because there was no compelling reason for the Department of Justice to file and prosecute this case after he was charged and convicted in Oklahoma state court. Aside from the fact that this issue was not raised in Barrett’s motion to suppress, a successful double jeopardy claim would require dismissal of the entire case, not just suppression of certain evidence, and, for the reasons discussed below, we conclude there is no merit to Barrett’s double jeopardy arguments.

2. Challenges to the indictment

Barrett attacks the indictment on three general grounds, i.e., that it “[1] was insufficient, [2] improperly charged multiple crimes and [3] improperly joined offenses.” Aplt. Br. at 35. We proceed to address these general grounds, along with the specific arguments included therein.

a) Sufficiency — failure to set forth elements of predicate offenses

Barrett contends “[t]he Indictment was insufficient as it did not set forth the elements of the predicate offenses [on Counts 1 and 2], and further there was no predicate offense charged for which Count 1 could be based.” Id. at 36-37. In addition, Barrett argues, “[t]he jury did not find [him] guilty of any predicate offense [with respect to any of the counts in the indictment], and the jury was not instructed to find [him] guilty of a predicate offense.” Id. at 37.

Generally speaking, we review the sufficiency of an indictment de novo. United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006). Barrett did not, however, present his sufficiency challenges to the district court. Thus, we must determine what standard of review to apply to those challenges. In previous decisions, we have held that such claims are jurisdictional in nature, can be raised at any time during the pendency of the proceedings, and therefore that application of the plain error standard is inappropriate. E.g., United States v. Gamar-Bastidas, 222 F.3d 779, 785 n. 4 (10th Cir.2000). However, in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Edüd 860 (2002), the Supreme Court made clear that defects in an indictment are not jurisdictional, and that challenges to such defects are thus subject to plain error review if not properly raised in the district court proceedings. Id. at 631, 122 S.Ct. 1781 (“Freed from the view that indictment omissions deprive a court of jurisdiction, we proceed to apply the plain-error test of Federal Rule of Criminal Procedure 52(b) to respondents’ forfeited- claim.”). Thus, in accordance with Cotton, we review Barrett’s sufficiency claims only for plain error.

Barrett first asserts that the superseding indictment was insufficient because it failed to list the elements of the underlying offenses identified in Counts 1 and 2. Counts 1 and 2 of the superseding indictment charged Barrett with violating 18 U.S.C. §§ 924(c)(1)(A) and