UNITED STATES COURT OF APPEALS August 13, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-3095

MICHAEL R. CAPPS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 6:21-CR-10073-EFM-1) _________________________________

Jacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with him on the briefs), Denver, Colorado for Defendant-Appellant.

Carrie N. Capwell, Assistant United States Attorney (Kate E. Brubacher, United States Attorney with her on the brief), Kansas City, Kansas for Plaintiff-Appellee.

_________________________________

Before HARTZ, TYMKOVICH, and BACHARACH, Circuit Judges. _________________________________

HARTZ, Circuit Judge. _________________________________

Defendant Michael Capps was convicted on 12 counts related to fraudulently

obtaining federal funds intended for COVID-19 relief. He appeals his convictions on the

ground that the district court reversibly erred by reading the jurors their instructions only Appellate Case: 23-3095 Document: 010111093774 Date Filed: 08/13/2024 Page: 2

at the outset of the presentation of evidence without doing so again after the close of

evidence. We conclude that he did not preserve his argument that Federal Rule of

Criminal Procedure (Criminal Rule) 30(c) required the court to instruct the jury after the

close of evidence and that he cannot prevail under plain-error review. We therefore affirm

the judgment below.

I. BACKGROUND

A federal grand jury indicted Mr. Capps on 19 counts including bank fraud, false

statements to a bank and the Small Business Administration, wire fraud, and money

laundering. The indictment alleged that he obtained COVID-19 relief on behalf of three

entities (two businesses that he owned and one foundation of which he was a member) by

making false representations regarding the workforce of each.

At a pretrial conference the district court discussed its intention to read the jury

instructions after jury selection and before presentation of evidence and to give the jurors

individual copies of the instructions for reference during trial. It explained that in its

previous experience using this practice, “jurors like it. And I’ve found that they take notes

on the instructions as we go through the trial because of that.” R., Vol. III at 24. It noted

its concern that reading all the instructions before trial could be prejudicial in a criminal

case if a charge gets dropped or dismissed during the trial, and it asked for counsel’s

input. The prosecutor said that he had participated in a case in which the court adopted

this practice and “ended up liking it” because it provided “a mental road map to the jury.”

Id. at 25. Defense counsel said, “I kind of like it.” Id. The court announced that “we’ll

plan to read the instructions in advance.” Id. During the conference the court also

Page 2 Appellate Case: 23-3095 Document: 010111093774 Date Filed: 08/13/2024 Page: 3

explained that because of the court’s crowded schedule and the need to accommodate the

impending retirement of one of the attorneys, the trial would proceed on Monday,

Wednesday, Thursday, the following Monday, and the Wednesday the

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