No. 21-3075 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Isaac May

lllllllllllllllllllllDefendant - Appellant ___________________________

No. 21-3344 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

James Richards, also known as Richie Rich

lllllllllllllllllllllDefendant - Appellant ____________

Appeals from United States District Court for the Eastern District of Arkansas - Central ____________

Submitted: October 19, 2022 Filed: June 14, 2023 ____________ Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges. ____________ SMITH, Circuit Judge.

Isaac May and James Richards (collectively, “appellants”) were convicted by a jury of charges alleged in a ten-count superseding indictment for offenses committed as part of a large drug conspiracy. The district court1 sentenced them to 360 and 336 months in prison, respectively. On appeal, May challenges both the denial of his motion for severance and his sentence; Richards challenges the denial of his motion for recusal, the denial of his motions to suppress wiretap and video surveillance recordings, and his convictions. We affirm.

I. Background The indictment charged May with one count of conspiring to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 846; and three counts of using a communications facility in furtherance of a drug trafficking offense, in violation of 21 U.S.C. §§ 843(b) and (d). Richards was charged with one count of conspiring to distribute five kilograms or more of cocaine; one count of distributing less than 500 grams of a mixture and substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and five counts of using a communications facility in furtherance of a drug trafficking offense.

A. Pretrial May moved for severance, arguing that there was a substantial risk that the jury would confuse which acts were allegedly committed by him and which by Richards. He averred that the risk of prejudice outweighed the preference for joinder. May

1 The Honorable James M. Moody, Jr., United States District Judge for the Eastern District of Arkansas.

-2- further argued that he would need to call Richards as a witness to show that any alleged wrongdoing was done without May’s consent or knowledge. May suggested that Richards could exercise his Fifth Amendment right, depriving May of his constitutional right to examine him.

In denying the motion, the district court observed that “[g]enerally, persons charged in a conspiracy or jointly indicted on similar evidence from the same or related events should be tried together.” R. Doc. 415, at 2 (quoting United States v. Lewis, 557 F.3d 601, 609 (8th Cir. 2009)). The district court further stated that May would be required to establish that Richards actually would testify and that Richards’s testimony would be exculpatory. The district court concluded that May failed to establish prejudice.

Richards also filed pretrial motions. First, he moved for recusal because the district court authorized the warrants that led to his arrest. He argued that “[w]ith the information gained while signing the warrants, Judge James M. Moody became impartial and bias[ed] to Mr. Richards.” R. Doc. 231, at 2.

The district court denied the recusal motion. It concluded that “[j]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” R. Doc. 247, at 2 (alteration in original) (quoting Liteky v. United States, 510 U.S. 540, 5