Filed: Jan. 06, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4461 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLIFTON JEROME WASHINGTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:09-cr-00105-D-1) Argued: October 28, 2011 Decided: January 6, 2012 Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished opinion. Judge
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4461 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLIFTON JEROME WASHINGTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:09-cr-00105-D-1) Argued: October 28, 2011 Decided: January 6, 2012 Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished opinion. Judge ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4461
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLIFTON JEROME WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:09-cr-00105-D-1)
Argued: October 28, 2011 Decided: January 6, 2012
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Keenan and Senior Judge Hamilton concurred.
ARGUED: Robert Hood Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES,
Raleigh, North Carolina, for Appellant. Eric David Goulian,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Clifton Jerome Washington appeals his jury conviction on
one count of possession of a firearm by a convicted felon.
Washington contends that: (1) the admission of out-of-court
statements of a confidential police informant violated his Sixth
Amendment right of confrontation; and (2) the district court
abused its discretion by finding that the probative value of the
out-of-court statements was not substantially outweighed by the
danger of unfair prejudice. We find no error and therefore
affirm.
I.
Washington was indicted by a grand jury in the Eastern
District of North Carolina on April 15, 2009 on one count of
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1) and 924.
Before trial, the Government indicated that it did not plan
to call as a witness the confidential informant who provided
information that led to the stop of a vehicle in which
Washington was a passenger. The Government informed the
district court that it intended to have Officer Billy Dee
Greenwood of the Raleigh Police Department testify that a
confidential informant reported to him that an individual had
fired a shot in Raleigh, North Carolina and then got into a
2
multi-colored Crown Victoria, for the purpose of explaining why
the police stopped the car.
Washington moved in limine to prevent the admission of the
confidential informant’s out-of-court statements. Washington
argued the introduction of the informant’s statements were
unnecessary, irrelevant, and unduly prejudicial. In addition,
Washington maintained that testimony about the out-of-court
statements from Officer Greenwood, rather than from the
confidential informant himself, would deny him his
constitutional right to confront his accusers.
The district court disagreed and specifically found that
under the Supreme Court’s decision in Crawford v. Washington,
541 U.S. 36 (2004), the out-of-court statements did not
implicate Washington’s Sixth Amendment confrontation rights
because the evidence would not be offered for the truth of the
matter asserted. The district court also found that the
probative value of this evidence was not substantially
outweighed by any danger of unfair prejudice under Federal Rule
of Evidence 403. The district court noted that
contemporaneously with the introduction of the evidence, it
would issue a limiting jury instruction directing the jury not
to consider the statements for the truth of the matter asserted.
According to the district court, such an instruction would
remove the danger of unfair prejudice.
3
Trial commenced on January 11, 2010. Officer Jonathan
MCCann testified as the Government’s first witness. Officer
McCann testified that he went on duty on December 19, 2008 at
7:00 a.m. Officer McCann further testified that he received a
phone call around 7:10 a.m. from Officer Greenwood advising that
there was a suspect in southeast Raleigh, who was in possession
of a firearm, traveling in a multi-colored Crown Victoria.
Officer McCann recalled that he had several conversations with
Officer Greenwood, who was talking to an informant and trying to
update Officer McCann as he arrived in the area. Because of the
possibility that there was a firearm in the vehicle, Officer
McCann had radioed for assistance before he spotted the vehicle.
Officer McCann observed a multi-colored Crown Victoria
traveling north on East Street near Martin Luther King Boulevard
in Raleigh. Officer McCann saw two individuals in the vehicle,
and the passenger did not appear to be wearing a seatbelt.
Officer McCann further testified that the Crown Victoria passed
two vehicles that were waiting to make a left turn and made a
right turn on East Davie Street, in violation of a North
Carolina statute prohibiting improper passing in a single lane.
Officer McCann made the same right turn, another patrol vehicle
pulled up behind him, and then Officer McCann initiated a
traffic stop by turning on his emergency lights.
4
Officer McCann and Officer Matroo, who was riding with
Officer McCann, approached the vehicle with their service
weapons drawn in the low-ready position because of the suspicion
that there could be a firearm in the car. Christian Diggs, the
driver of the vehicle, and Washington, the passenger, were asked
to step out of the vehicle. Following pat-down searches, neither
was found to have a weapon. Diggs consented to a search of the
vehicle, during which Officer McCann found a silver semi-
automatic firearm inside the armrest between the driver and
passenger seats. Because of the firearm’s position on its side
with the barrel pointing toward the steering wheel, Officer
McCann believed that the weapon had likely been placed there by
the passenger. When Diggs and Washington were advised that a
firearm was located in the vehicle, both denied ownership of the
weapon.
At trial, before Officer Greenwood testified, the district
court instructed the jury as follows:
Ladies and gentlemen of the jury . . . . You have
heard a little bit about what a confidential informant
told to Officer Greenwood. You must not consider the
statement relayed by that confidential informant to
Officer Greenwood as if it were true in deciding if
the defendant committed the acts charged in the
indictment.
The evidence concerning what that individual may
or may not have said to Officer Greenwood is being
offered for the limited purpose of explaining why
Officer Greenwood began an investigation and then took
steps himself during that investigation. This is the
sole purpose for which such evidence concerning
5
alleged statements of a confidential informant are
being offered, and again, those statements are not
being offered for the truth of the matter asserted.
J.A. 299-300.
Thereafter, Officer Greenwood testified that he received
information from a confidential and reliable source on December
19, 2008 that there was a person who had just fired a shot and
was in possession of a firearm. Officer Greenwood further
testified that over the course of several telephone calls, the
confidential informant provided a description of the individual
and also stated that the individual had gotten into the
passenger seat of a multi-colored older model Crown Victoria
traveling northbound. Officer Greenwood explained that he
received this information “as it was happening.”
In response to Officer Greenwood’s testimony, the defense
counsel renewed the objection regarding the admission of the
confidential informant’s out-of-court statements, which the
district court again overruled. The district court did,
however, provide a second limiting jury instruction:
[L]adies and gentlemen, you will just recall my
limiting instructions that the testimony concerning
what that confidential informant told Officer
Greenwood is not being offered for the truth of what
that confidential informant said. It’s being offered
to explain what Officer Greenwood did next.
J.A. 302-03. Thereafter, Officer Greenwood testified that he
relayed a description of the person, the vehicle, and the area
6
and direction of travel of the vehicle to Officer McCann. When
Officer Greenwood arrived at the scene, he identified
Washington.
Officer Greenwood further testified that both Diggs and
Washington were taken to the police station. Officer Greenwood
and Federal Bureau of Investigation Special Agent Rob Richards
advised Washington of his Miranda rights. Washington
nevertheless agreed to speak with them and signed a Miranda
waiver form. In summarizing his interview with Washington,
Officer Greenwood testified that after initially denying
knowledge of the gun, Washington gave a statement admitting that
the gun found in the Crown Victoria was his and that he had
fired that gun earlier that day to scare an individual named
“Chill Will” with whom he was having a dispute. Washington also
admitted that he placed the gun underneath the center console of
the Crown Victoria after the car was pulled over by the police.
On cross-examination, Officer Greenwood recalled that he
had previously testified at other hearings about what the
confidential informant told him about this case. Defense
counsel questioned Officer Greenwood regarding this previous
testimony whether the confidential informant told Officer
Greenwood that the informant saw the person making the shot or,
in the alternative, whether the confidential informant heard the
shot from several streets away. Officer Greenwood confirmed
7
that it was his testimony that the confidential informant told
him that the informant had seen a person fire a gun before
getting into the Crown Victoria. Officer Greenwood further
testified that the evidence from the confidential informant was
“reliable” and that the confidential informant was someone he
believed gave him “true” information.
Defense counsel objected to the testimony, and specifically
to the characterization by Officer Greenwood that the evidence
from the informant was true. In response, the district court
gave a third limiting instruction:
Well, again, ladies and gentlemen of the jury,
the court has instructed you twice that the - you have
heard evidence of what a confidential informant told
Officer Greenwood. Do not consider the confidential
informant’s statements for the truth of the matter
asserted in deciding if the defendant committed the
acts charged in the indictment.
The evidence concerning what the confidential
informant said to Officer Greenwood is being offered
for the limited purpose of explaining why Officer
Greenwood began an investigation and took particular
steps during that investigation. This is the sole
purpose for which that evidence of the confidential
informant is being provided and may be considered.
J.A. 332. During the Government’s re-direct examination of
Officer Greenwood, the district court gave the jury a fourth and
final limiting instruction:
Again, ladies and gentlemen, I remind you of my
instruction that I have given to you a number of
times, that the testimony about what the confidential
informant said is not offered for the truth of the
matter asserted.
8
It’s only offered to explain why Officer
Greenwood then took the investigative steps that he
took, as I have described earlier in the limiting
instruction I have given to you.
J.A. 348-49.
The Government rested its case after reading a stipulation
into the record that Washington had previously been convicted of
a crime punishable by more than one year in prison. Washington
presented no evidence.
During the jury charge conference, defense counsel proposed
that the reasons for the limiting instructions be explained to
the jury, in the following manner:
The Court would consider instructing the jury
something to the effect of the reason why [the jury]
can’t consider this evidence as substantive evidence
for the truth of what [the confidential informant]
said is because the confidential informant did not
come into court and testify and was not subject to
cross-examination.
Or, in the alternative, if I can bring that up in
closing, and just say, look, just so you will know why
you are not supposed to consider that as substantive
evidence for the truth of the matter asserted, this
person did not come and testify before you and I
didn’t get a chance to cross-examine him on things
like opportunity to observe, bias, drug use, whether
or not he was getting paid, and some of the things we
know from the suppression hearing.
J.A. 376. The district court noted that the jury had already
been instructed and, further, stated that the court was
confident that the jury would follow the instructions.
Additionally, the district court expressed concern that an
9
additional explanatory instruction would be inappropriate and
confusing. An agreement was then reached:
[Defense counsel]: Okay. I certainly don’t want to
try to explain the Court’s instruction, but if I can
say, look, you didn’t get a chance to judge this
person’s credibility, he didn’t come into court. The
government choose [sic] not to bring this person in
here, and you have been instructed not to consider
what this person said for the truth of the matter.
That is probably enough for me.
[The Government]: I have no objection to that.
The Court: Okay. That is fine.
J.A. 377-78.
The jury ultimately convicted Washington of one count of
possession of a firearm by a convicted felon. The district
court sentenced him to 120 months’ imprisonment. Washington
appeals. 1
II.
A.
On appeal, Washington contends that by admitting out-of-
court statements made by a confidential informant to the police,
the district court violated his right to confrontation under the
Sixth Amendment of the United States Constitution. Washington
argues that the district court allowed the introduction of
1
Washington also moved to file with this Court a
supplemental brief; that motion is hereby granted.
10
testimonial hearsay statements of a confidential police
informant that proved him guilty of possession of a firearm. We
disagree.
“We review alleged Confrontation Clause violations under
the de novo standard of review.” United States v. Lighty, 616
F.3d 321, 376 (4th Cir. 2010), cert. denied,
132 S. Ct. 451
(2011). The Confrontation Clause guarantees a criminal
defendant the right “to be confronted with the witnesses against
him.” U.S. Const. amend. VI. In Crawford, the Supreme Court
held that the Confrontation Clause bars “admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a
prior opportunity for
cross-examination.” 541 U.S. at 53–54.
However, the admission of non-hearsay does not implicate a
defendant’s confrontation. See id. at 60 n.9 (“The Clause . . .
does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.”
(citing Tennessee v. Street,
471 U.S. 409, 414 (1985))); Fed. R.
Evid. 801(c) (defining an out-of-court statement as hearsay if
it is “offered in evidence to prove the truth of the matter
asserted”); see also United States v. Ayala,
601 F.3d 256, 272
(4th Cir. 2010) (“Crawford is quite explicit that the
Confrontation Clause does not eliminate the use of testimonial
11
statements across the board.”), cert. denied, 131 S. Ct. 262
(2010).
As observed by the Seventh Circuit, “[t]here are no doubt
times when the testimony regarding a tip from an informant is
relevant. If a jury would not otherwise understand why an
investigation targeted a particular defendant, the testimony
could dispel an accusation that the officers were officious
intermeddlers staking out [the defendant] for nefarious
purposes.” United States v. Silva, 380 F.3d 1018, 1020 (7th
Cir. 2004). As the Government argues, this is precisely the
situation presented here: Officer McCann’s actions, i.e.,
following the Crown Victoria, finding a legal basis to pull it
over, approaching it with his weapon drawn, removing the driver
and passenger, and obtaining permission to search the vehicle,
can only be understood in the context of the confidential
informant’s statement that an individual that recently fired a
gun might be in the vehicle with a gun. Therefore, the
confidential informant’s out-of-court statements to Officer
Greenwood were properly admitted not for the truth of the matter
asserted, but rather for the limited, permissible purpose of
explaining the investigative activity that ensued.
We have held that such out-of-court statements that explain
or provide context for the actions of law enforcement officers
are routinely admitted as non-hearsay. See, e.g., United States
12
v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (holding that an
agent’s testimony concerning information received from another
agent “was offered not for its truth but only to explain why the
officers and agents made the preparations that they did in
anticipation of the appellant’s arrest. As such it was not
inadmissible hearsay”) (citations omitted)).
Further, the district court gave four limiting instructions
to the jury regarding the proper use of the evidence. The
district court repeatedly told the jury not to consider the
informant’s statement to Officer Greenwood for the truth of the
matter asserted. In the first instruction, the district court
explained to the jury, “you must not consider the statement
relayed by the confidential informant to Officer Greenwood as if
it were true in deciding if the defendant committed the acts
charged in the indictment.” J.A. 299. In subsequent
instructions, jurors were reminded, “you will just recall my
limiting instructions that the testimony concerning what that
confidential informant told Officer Greenwood is not being
offered for the truth of what that confidential informant said.”
J.A. 302-03. The district court also instructed the jury that
the evidence was “being offered for the limited purpose of
explaining why Officer Greenwood began an investigation and took
particular steps during that investigation.” J.A. 332.
13
In light of the legitimate rationale for admitting the out-
of-court statements, as well as the limiting instructions, the
district court did not err in allowing the statements, which did
not implicate the Confrontation Clause, into evidence.
B.
With his second argument, Washington asserts that the
district court abused its discretion in finding that the
probative value of the out-of-court statements was not
substantially outweighed by the danger of unfair prejudice.
Washington contends that, even assuming arguendo that the out-
of-court statements of the confidential informant were not
hearsay, the district court abused its discretion in failing to
exclude them under Federal Rules of Evidence 401 and 403. We
disagree.
A district court’s admission of evidence is reviewed for
abuse of discretion. United States v. Perkins, 470 F.3d 150,
155 (4th Cir. 2006). Such discretion is abused only when a
“district court act[s] arbitrarily or irrationally.” United
States v. Moore,
27 F.3d 969, 974 (4th Cir. 1994) (internal
quotation marks and citation omitted).
Rule 401 provides for the admission of relevant evidence,
i.e., “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
14
more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Therefore, evidence is relevant
if it is “worth consideration by the jury” or has a “plus
value.” United States v. Queen, 132 F.3d 991, 998 (4th Cir.
1997) (internal quotation marks and quotation omitted). “As we
have often observed, relevance typically presents a low barrier
to admissibility.” United States v. Leftenant,
341 F.3d 338,
346 (4th Cir. 2003) (citation omitted).
Under Rule 403, otherwise admissible evidence “may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice.” Fed. R. Evid. 403. “Rule 403
only requires suppression of evidence that results in unfair
prejudice—prejudice that damages an opponent for reasons other
than its probative value, for instance, an appeal to emotion,
and only when that unfair prejudice substantially outweighs the
probative value of the evidence.” United States v. Mohr, 318
F.3d 613, 619–20 (4th Cir. 2003) (internal quotation marks and
citation omitted). “[I]n reviewing the trial court’s decision,
we ‘look at the evidence in a light most favorable to its
proponent, maximizing its probative value and minimizing its
prejudicial effect.’” United States v. Simpson,
910 F.2d 154,
157 (4th Cir. 1990) (quoting Mullen v. Princess Anne Volunteer
Fire Co., Inc.,
853 F.2d 1130, 1135 (4th Cir. 1988)).
15
Here, the confidential informant’s statements to Officer
Greenwood were not only relevant; they provided a proper
understanding of the officers’ investigative actions. The
information reported by the informant that an individual had
fired a gun and then gotten into a multi-colored Crown Victoria
was particularly relevant in light of the presence of the back-
up officers, the officers’ display of their weapons, the removal
of the occupants from the vehicle, and the search of the
vehicle.
Further, the danger of “unfair prejudice” was minimal. The
district court instructed the jury four times that the
informant’s statements were not to be considered for their
truth, but only to explain the officers’ actions. Additionally,
because the jury also heard Officer Greenwood testify that
Washington admitted to possessing and firing the gun, the out-
of-court statements likely had no appreciable impact.
Accordingly, the district court acted well within its discretion
in finding that the probative value of the out-of-court
statements was not substantially outweighed by any danger of
unfair prejudice.
16
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
17
