Rudolph’s Rules: Tenth Circuit Defines § 3238 Venue for Extraterritorial Crimes and Confirms Forfeiture of Interest, Dividends, and Appreciation

Introduction

In United States v. Rudolph, No. 23-1278 (10th Cir. Sept. 8, 2025), the Tenth Circuit affirmed the conviction and forfeiture judgment against Lawrence “Larry” Rudolph for the killing of his wife, Bianca, during a Zambia safari and for mail fraud relating to the collection of nearly $4.9 million in life insurance proceeds. The case presents important holdings across four doctrinal areas:

• Severance of co-defendants under Federal Rule of Criminal Procedure 14 when a defendant seeks a co-defendant’s testimony.
• Venue for extraterritorial offenses under 18 U.S.C. § 3238, including definitive Tenth Circuit constructions of “arrested” and “first brought.”
• Admission of hearsay under the forfeiture-by-wrongdoing exception (Fed. R. Evid. 804(b)(6)), including where the intended proceeding has not yet begun and where preventing testimony is only a partial motive.
• Criminal forfeiture under 18 U.S.C. § 981(a)(1)(C), including tracing commingled funds and the inclusion of interest, dividends, and appreciation.

The Court (Holmes, C.J., joined by Moritz and Rossman, JJ.) rejected challenges to the denial of severance, to venue in Colorado, to the admission of statements Bianca made to a friend shortly before her death, and to the scope of the forfeiture order. The opinion both aligns the Tenth Circuit with sister circuits on key § 3238 issues and clarifies the breadth of forfeiture and evidence doctrines with practical repercussions for transnational prosecutions, domestic homicide cases implicating civil proceedings, and white-collar forfeiture practice.

Case Background and Procedural Posture

Rudolph, a wealthy dentist and avid big-game hunter, traveled with his wife to a remote Zambian camp in 2016. Early one morning, Bianca suffered a fatal shotgun wound to the heart. While Zambian authorities concluded the death was accidental and allowed cremation, the FBI later opened a suspicious death investigation, eventually charging Rudolph with foreign murder (18 U.S.C. §§ 1119, 1111) and mail fraud (18 U.S.C. § 1341) for collecting on multiple life insurance policies by claiming Bianca’s death was accidental. A recurring theme at trial was Rudolph’s long-running relationship with his partner and paramour, Lori Milliron, and associated financial and personal motives.

A Colorado jury convicted Rudolph of both counts. The district court imposed life imprisonment for foreign murder and concurrent 240 months for mail fraud, ordered restitution to the insurers, and entered a forfeiture order covering real property, high-end vehicles, bank accounts, and associated interest, dividends, and appreciation. On appeal, Rudolph challenged (1) denial of severance; (2) venue under § 3238; (3) admission of Bianca’s six statements to a friend under Rule 804(b)(6); and (4) the forfeiture order’s scope.

Summary of the Opinion

• Severance (Rule 14): Affirmed. Applying the seven McConnell factors, the Court held that Rudolph had not shown actual prejudice or that Milliron would likely testify in a severed trial. Her affidavit was conditional and conclusory; any “spillover” prejudice from testimony admitted only against Milliron was cured by robust limiting instructions.
• Venue (§ 3238): Affirmed. In a matter of first impression, the Tenth Circuit held that for extraterritorial offenses, “arrested” means first restrained of liberty in connection with the extraterritorial offense, and “first brought” means first brought in custody from outside the United States. Rudolph was arrested for foreign murder in Denver and first brought in custody to Denver after a Mexico detention/deportation; venue in Colorado was proper.
• Rule 804(b)(6) Evidence: Affirmed. The district court did not abuse its discretion in admitting four statements on the theory that Rudolph killed Bianca at least in part to prevent her from testifying in a future divorce proceeding; two statements admitted under a Safari Club litigation theory were, even if erroneous, harmless.
• Forfeiture (§ 981): Affirmed. The government traced insurance proceeds through commingled accounts using a proceeds-first approach; substitute-asset forfeiture under § 853(p) was unnecessary. The Court also upheld forfeiture of interest, dividends, and appreciation as “proceeds” derived from the fraudulently obtained funds.

Analysis

1) Severance: The McConnell Factors in Practice

When a defendant seeks severance to obtain a co-defendant’s testimony, the Tenth Circuit applies seven non-exhaustive factors (United States v. McConnell, 749 F.2d 1441 (10th Cir. 1984)). The Court also reaffirmed the high bar for severance under Rule 14 (Zafiro v. United States, 506 U.S. 534 (1993); United States v. Hall, 473 F.3d 1295 (10th Cir. 2007); United States v. Pursley, 577 F.3d 1204 (10th Cir. 2009); United States v. Clark, 717 F.3d 790 (10th Cir. 2013)).

• Likelihood of testimony: Weighed against Rudolph. Milliron’s affidavit stated only that she “would be able to testify” in a severed, later trial—effectively conditional and not an unequivocal waiver of her Fifth Amendment rights. Conditional offers (e.g., contingent on being tried first or acquitted) undercut likelihood. See McConnell; United States v. Espinosa, 771 F.2d 1382 (10th Cir. 1985).
• Significance: Weighed for Rudolph, but narrowly. Her proposed testimony might have supported Rudolph’s explanation of the Steak 44 “confession.” But testimony about Milliron’s separate conversations (e.g., with co-worker Grimley) would have been inadmissible in a severed Rudolph-only trial.
• Exculpatory nature/effect: Weighed against Rudolph. The affidavit was conclusory and did not supply details that would materially undercut the government’s case. The Court faulted the lack of substance, echoing Pursley and Hall.
• Likelihood of impeachment: Weighed against Rudolph. Milliron’s intimate relationship and post-death lifestyle benefits with Rudolph, as well as potential convictions if tried first, would likely have impeached her credibility (Fed. R. Evid. 609).
• Extent of prejudice: Weighed against Rudolph. The absence of Milliron’s testimony did not compromise a specific trial right or preclude a reliable verdict—especially because her testimony would largely have duplicated Rudolph’s own.
• Judicial economy: Weighed against severance. The district court stressed the complexity and resource-intensity of two lengthy trials with overlapping evidence and international witnesses, especially in the COVID-19 era.
• Timeliness: In Rudolph’s favor.

On balance, the most influential McConnell factors—likelihood of testimony, exculpatory effect, extent of prejudice, and judicial economy—favored the government. The Court also rejected Rudolph’s “spillover” claim; detailed limiting instructions confined Milliron-only evidence to her case, and jurors are presumed to follow such instructions (Zafiro; United States v. Jones, 530 F.3d 1292 (10th Cir. 2008); United States v. Herrera, 51 F.4th 1226 (10th Cir. 2022)).

2) Venue for Extraterritorial Offenses: § 3238 Clarified

For the first time in the Tenth Circuit, the Court defined the two venue hooks under 18 U.S.C. § 3238:

• “Arrested” means the district where the defendant is “first restrained of his liberty in connection with the offense charged.” The Court expressly joined the Second, Fourth, Fifth, Ninth, and D.C. Circuits. See United States v. Erdos, 474 F.2d 157 (4th Cir. 1973); United States v. Catino, 735 F.2d 718 (2d Cir. 1984); United States v. Wharton, 320 F.3d 526 (5th Cir. 2003); United States v. Ghanem, 993 F.3d 1113 (9th Cir. 2021); United States v. Slatten, 865 F.3d 767 (D.C. Cir. 2017).
• “First brought” means first brought in custody from outside the United States. See Erdos; Ghanem; and early articulation in United States v. Townsend, 219 F. 761 (S.D.N.Y. 1915) (distinguishing involuntary “brought” from voluntary “found”).

Applied here, Rudolph was “arrested” in Denver on the foreign-murder charge (even if he had been detained earlier abroad on a different charge) and “first brought” in custody to Denver through a Mexican detention/deportation chain the FBI had coordinated. Hence venue in the District of Colorado was proper under both prongs.

Importantly, the Court declared the government’s supposed “forum shopping” via deportation to Colorado immaterial to the statutory analysis. No authority suggested such coordination renders venue improper under § 3238. The Court’s adoption of the prevailing multi-circuit interpretation now gives prosecutors and defense counsel alike clear rules in the Tenth Circuit for selecting and contesting venue in transnational cases.

3) Forfeiture-by-Wrongdoing (Rule 804(b)(6)): Scope and Standards

The government sought to admit six statements Bianca made to her friend (Olmstead) shortly before her death, contending Rudolph had murdered Bianca in part to prevent her from testifying in a future divorce proceeding and in the Safari Club litigation. The district court admitted all six under Rule 804(b)(6), and the Tenth Circuit affirmed in pertinent part.

• Elements and standard: The government must prove by a preponderance of the evidence that the defendant (1) wrongfully caused the declarant’s unavailability and (2) intended that result. See Giles v. California, 554 U.S. 353 (2008); United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001). The district court may consider evidence otherwise inadmissible under the Rules (Rule 104(a); Bourjaily v. United States, 483 U.S. 171 (1987)).
• No requirement of a pending proceeding: The Court rejected Rudolph’s argument that 804(b)(6) demands an ongoing proceeding, relying on persuasive authority that the rule applies where a defendant kills to prevent testimony in reasonably anticipated proceedings. See United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); Dhinsa; Diaz v. United States, 223 U.S. 442 (1912).
• Partial motive suffices: Consistent with Tenth Circuit precedent (United States v. Montague, 421 F.3d 1099 (10th Cir. 2005)), the Court reaffirmed that preventing testimony need only be a motive, not the sole motive. This is critical in mixed-motive homicides.

On the merits, the Court held the divorce-proceeding theory supported admission of four statements about Rudolph’s alleged signature forgeries and Bianca’s concern over a purported postnuptial agreement. Evidence supporting the district court’s preponderance finding included: (1) Milliron’s statements (relayed via Anders) that divorce would cost Rudolph “everything,” suggesting the prenup was ineffective or non-existent; (2) a friend’s testimony that Rudolph explored the idea of a postnuptial around 2010 despite claiming one existed since 2000; and (3) a family-law expert’s testimony that the purported agreement was unlikely authentic/enforceable. The Court emphasized its deferential clear-error review of the district court’s factual findings and did not reweigh credibility.

Two statements admitted under the Safari Club litigation theory (about confronting and agreeing to fire Milliron) were, even if error, harmless. The same substantive points were established through other, properly admitted testimony (e.g., Bianca’s discovery of emails and Rudolph’s recognition that firing a partner would take time). Rudolph did not preserve a Confrontation Clause challenge; thus the non-constitutional harmless-error standard applied, which the government satisfied. The result is a practical template for Rule 804(b)(6) litigation in domestic homicide cases with civil or collateral proceedings in view.

4) Forfeiture: Tracing Commingled Funds and Capturing Growth

The Court affirmed forfeitability of real properties (Arizona and Pennsylvania), luxury cars, bank-account funds, and the associated interest, dividends, and appreciation under 18 U.S.C. § 981(a)(1)(C) (via 28 U.S.C. § 2461(c)).

• Tracing commingled funds: The government used a modified “proceeds-first” method to trace life-insurance proceeds through accounts to asset purchases. See United States v. Banco Cafetero Panama, 797 F.2d 1154 (2d Cir. 1986) (analogous approach); United States v. Erker, 129 F.4th 966 (6th Cir. 2025). The district court found the government’s tracing “credible” and “logical,” and the Tenth Circuit found no clear error.
• No automatic resort to § 853(p): The Court rejected Rudolph’s argument that commingling compelled a substitute-asset money judgment under 21 U.S.C. § 853(p). Absent untraceability or indivisibility “without difficulty,” § 981 allows direct forfeiture of traceable property. While Rudolph cited United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996), the Tenth Circuit observed that the Third Circuit cabined Voigt in United States v. Stewart, 185 F.3d 112 (3d Cir. 1999)—permitting direct forfeiture when the government clearly traces laundered funds. The government’s tracing here satisfied that standard.
• Capturing growth: interest, dividends, appreciation: The Court held that “proceeds” in § 981 include the growth on tainted funds—interest, dividends, and appreciation—relying on the statute’s text and persuasive authority (United States v. Afriyie, 929 F.3d 63 (2d Cir. 2019); cf. United States v. Contorinis, 692 F.3d 136 (2d Cir. 2012)). The opinion also reconciled an ambiguity in the oral pronouncement about waiving interest by consulting extrinsic indicators (judgment language and party positions), concluding the district court had not waived forfeiture interest.

The forfeiture discussion also features procedural guardrails: several defense challenges to the tracing methodology and omission of untainted funds were waived at sentencing and again on appeal by skeletal briefing (United States v. Egli, 13 F.4th 1139 (10th Cir. 2021); United States v. Woodmore, 135 F.4th 861 (10th Cir. 2025)).

Precedents Cited and Their Roles

• Rule 14 Severance and Spillover
  • Zafiro v. United States, 506 U.S. 534 (1993): Strong preference for joint trials; limiting instructions often cure prejudice.
  • United States v. McConnell, 749 F.2d 1441 (10th Cir. 1984): Seven-factor test when severance is sought for co-defendant testimony.
  • United States v. Pursley, 577 F.3d 1204 (10th Cir. 2009); United States v. Hall, 473 F.3d 1295 (10th Cir. 2007); United States v. Clark, 717 F.3d 790 (10th Cir. 2013): High bar for severance; need for concrete, exculpatory proffers.
  • United States v. Jones, 530 F.3d 1292 (10th Cir. 2008); United States v. Herrera, 51 F.4th 1226 (10th Cir. 2022): “Spillover” alone does not suffice; jurors are presumed to heed limiting instructions.
• § 3238 Venue for Extraterritorial Crimes
  • United States v. Erdos, 474 F.2d 157 (4th Cir. 1973); Catino (2d); Wharton (5th); Ghanem (9th); Slatten (D.C.): Consensus that “arrested” = first restraint of liberty for the charged offense; “first brought” = first brought in custody from abroad. The Tenth Circuit now explicitly joins these interpretations.
  • United States v. Townsend, 219 F. 761 (S.D.N.Y. 1915): Classic voluntary/involuntary “found”/“brought” distinction, echoed here.
• Rule 804(b)(6) Forfeiture-by-Wrongdoing
  • Giles v. California, 554 U.S. 353 (2008); Davis v. Washington, 547 U.S. 813 (2006); Crawford v. Washington, 541 U.S. 36 (2004): Confrontation Clause and equitable forfeiture-by-wrongdoing principles.
  • United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001); United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996): No need for an ongoing proceeding; partial intent suffices.
  • United States v. Montague, 421 F.3d 1099 (10th Cir. 2005): Tenth Circuit recognition that partial intent is sufficient.
  • Bourjaily v. United States, 483 U.S. 171 (1987); Fed. R. Evid. 104(a): Evidentiary rules do not limit the court in preliminary admissibility determinations.
• Criminal Forfeiture
  • Libretti v. United States, 516 U.S. 29 (1995); United States v. Bader, 678 F.3d 858 (10th Cir. 2012): Forfeiture as part of sentencing; standard of review.
  • Honeycutt v. United States, 581 U.S. 443 (2017); United States v. Channon, 881 F.3d 806 (10th Cir. 2018): Substitute-asset provision is the exclusive route to untainted property.
  • United States v. Banco Cafetero Panama, 797 F.2d 1154 (2d Cir. 1986); United States v. Erker, 129 F.4th 966 (6th Cir. 2025): Proceeds-first tracing for commingled accounts.
  • United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996); United States v. Stewart, 185 F.3d 112 (3d Cir. 1999): Third Circuit limits Voigt; where tracing is clear, direct forfeiture remains proper.
  • United States v. Afriyie, 929 F.3d 63 (2d Cir. 2019): Forfeiture may extend to appreciation of tainted funds; adopted here for interest, dividends, appreciation.
  • Additional persuasive authorities: United States v. Garbacz, 33 F.4th 459 (8th Cir. 2022); United States v. Wright, 49 F.4th 1221 (9th Cir. 2022); United States v. Omidi, 125 F.4th 1283 (9th Cir. 2025); United States v. Cline, --- F.4th ---, 2025 WL 2414232 (10th Cir. 2025).

Legal Reasoning Highlights

• Severance: The opinion operationalizes McConnell by demanding a detailed, unconditional co-defendant affidavit that is genuinely exculpatory and likely to be delivered. Conditional offers, vague proffers, and duplicative testimony will not overcome the system’s preference for joint trials.
• Venue: By joining the prevailing view of § 3238, the Court centers the inquiry on the first U.S. district in which the defendant is restrained in connection with the charged extraterritorial offense or first brought in custody from abroad. Detentions on other charges or voluntary arrivals in the U.S. do not control. Government coordination with foreign authorities to land a defendant in a preferred district does not spoil venue if the statutory hooks are satisfied.
• Rule 804(b)(6): The Court confirms that forfeiture-by-wrongdoing is available where the defendant kills to prevent testimony in anticipated proceedings and that silencing need only be a partial motive. District courts may weigh broad categories of information at preliminary admissibility stages and are owed clear-error deference on factfinding.
• Forfeiture: The opinion underscores that commingling does not immunize assets from forfeiture when the government can credibly trace tainted funds. It also brings the Tenth Circuit in line with the view that “proceeds” include time value and gains on tainted funds.

Impact and Practical Implications

• Transnational prosecutions: The § 3238 holdings give prosecutors greater certainty to select venues through arrest logistics or extradition/deportation routing, so long as the “first restraint” and “first brought in custody” requirements are satisfied. Defense counsel must focus on the moment and charge of restraint rather than earlier detentions or voluntary flights.
• Homicides with collateral civil stakes: The 804(b)(6) analysis is especially consequential in domestic homicide cases interwoven with divorce, probate, or litigation exposure. Prosecutors can admit decedents’ statements where preventing testimony in these proceedings was at least partly the defendant’s motive.
• Forfeiture practice: Defendants cannot rely on commingling to force substitute-asset money judgments; detailed, credible tracing will sustain direct forfeiture of high-value assets. Gains on tainted funds—interest, dividends, appreciation—are forfeitable; this raises the stakes of delay and investment growth during the pendency of charges.
• Severance strategy: Defendants seeking a co-defendant’s testimony must secure and file an unequivocal, detailed affidavit that states concrete, exculpatory facts. Courts will discount conditional, conclusory, or cumulative proffers; limiting instructions will typically cure spillover.

Complex Concepts Simplified

• Severance (Rule 14): Trying co-defendants together is the default because it saves time and avoids inconsistent verdicts. To separate trials, a defendant must show real prejudice—often by proving a co-defendant will actually testify with specific, exculpatory facts—rather than simply arguing a better chance at acquittal.
• Venue for crimes abroad (§ 3238): The trial occurs in the U.S. district where the defendant is first (a) restrained for the charged extraterritorial offense or (b) brought in custody from abroad. A voluntary layover after the crime does not fix venue.
• Forfeiture-by-wrongdoing (Rule 804(b)(6)): If you make a witness unavailable intending that result (e.g., to stop testimony), you lose the right to exclude their out-of-court statements as hearsay or on Confrontation grounds. The court decides admissibility on a preponderance of the evidence, using broad sources of information.
• Criminal forfeiture with commingled funds: When illegal and legal funds mix in accounts, the government can use accounting rules (like “proceeds-first”) to trace the illegal money to purchases. If tracing is credible, the actual assets can be forfeited; the government doesn’t have to take other “substitute” property instead.
• “Proceeds” include growth: Forfeiture can capture not only the tainted principal but also the interest, dividends, and appreciation deriving from it.
• Harmless error: If the government shows an evidentiary error did not affect the verdict (under the applicable standard), the conviction stands.

Practice Pointers

• For prosecutors:
  • In extraterritorial cases, document precisely when and where the defendant is first restrained for the charged offense; coordinate removal logistics with venue in mind.
  • For Rule 804(b)(6), build a thorough record on partial motives to silence, including civil or family-law stakes; be ready to rely on Rule 104(a) scope.
  • For forfeiture, invest in a rigorous tracing analysis with clear visualizations; apportion growth between tainted and untainted funds to support interest/dividends/appreciation forfeiture.
• For defense counsel:
  • Severance motions predicated on co-defendant testimony must include an unequivocal affidavit with specific, exculpatory facts; address likelihood of impeachment and non-cumulative value.
  • Venue challenges should target the charge-specific restraint moment; earlier or foreign detentions on other charges will not defeat venue under § 3238.
  • Preserve Confrontation Clause objections explicitly; otherwise, evidentiary claims will be reviewed under non-constitutional harmless-error standards.
  • For forfeiture, avoid waiving challenges to tracing methods; if arguing for § 853(p), show why commingling rendered tracing unreliable or assets indivisible “without difficulty.”

Conclusion

United States v. Rudolph cements three significant doctrinal refinements in the Tenth Circuit. First, venue for extraterritorial crimes now tracks the dominant view: “arrested” means first restraint of liberty for the charged offense, and “first brought” means first brought in custody from outside the United States—endorsements that remove guesswork in cross-border prosecutions. Second, the Court clarifies the reach of Rule 804(b)(6): a defendant forfeits confrontation and hearsay objections by killing a declarant to prevent testimony in anticipated proceedings, even where silencing is only one of several motives. Third, criminal forfeiture under § 981 reaches not just assets traceable through commingled accounts but also their interest, dividends, and appreciation, reinforcing the statute’s disgorgement function.

Coupled with a rigorous reaffirmation of the high bar for severance and the curative power of limiting instructions, Rudolph provides a comprehensive, prosecution- and trial-management–friendly blueprint for complex, multi-theory cases with international footprints and financial overlays. Defense teams will need more detailed proffers, sharper preservation of constitutional claims, and sophisticated forensic accounting responses to meet the standards the Tenth Circuit has now emphatically set.