FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                       UNITED STATES COURT OF APPEALS                         March 21, 2019

                                                                           Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                              Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee

 v.                                                            No. 17-2146

 MICHAEL DALTON,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 5:16-CR-02905-RB1-)
                       _________________________________

Brock Benjamin, El Paso, Texas, for Defendant-Appellant.

Marisa A. Ong, Assistant United States Attorney (John C. Anderson, United States
Attorney, District of New Mexico, with her on the brief), Office of the United States
Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee.
                        _________________________________

Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.
                  _________________________________

EBEL, Circuit Judge.
                        _________________________________

      In 2017, Michael Dalton was convicted by a jury of being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Dalton challenges his

conviction on several evidentiary grounds. We agree with only one of Dalton’s

arguments—that the district court should have excluded the evidence the government
obtained during the second search of Dalton’s residence that occurred in this case,

which we conclude was unlawful. The police conducted the second search of

Dalton’s residence pursuant to a warrant that permitted the officers to search for

firearms and firearm paraphernalia based on (1) the officers’ discovery of an AK-47

in Dalton’s car, (2) their knowledge that Dalton could not lawfully possess firearms

as a previously convicted felon, and (3) their knowledge from training and experience

that, frequently, persons who have firearms in their vehicles also have firearms in

their homes. However, after the officers obtained the search warrant but before they

executed it, the officers discovered that someone other than Dalton had been driving

Dalton’s vehicle with the AK-47 in it, which, when combined with the other facts the

officers knew, made it materially less likely that firearms and firearm paraphernalia

would be found in Dalton’s residence. Nonetheless, the officers conducted the

search. We conclude that the second search was not supported by probable cause.

However, we determine that the inclusion of the evidence discovered in the second

search at Dalton’s trial was harmless error. Therefore, exercising jurisdiction

under 28 U.S.C. § 1291, we AFFIRM Dalton’s conviction.1




1
  Additionally, we deny as moot Dalton’s Motion to Seal Supplemental Record Vol. I
in accordance with the order we issued on February 6, 2018, because Dalton filed a
redacted version of that supplemental record with the court.
                                           2
                                  I.   BACKGROUND

   1. Dalton’s arrest and the first search of the Kenlea house

       On August 28, 2015, police officers responded to a domestic disturbance call

concerning a loud argument that was taking place between Michael Dalton and Maria

Nevarez in the front yard of 1101 S. Kenlea Drive in Roswell, New Mexico (the

“Kenlea house”). The neighbor who called 911 reported that she heard Dalton tell

Nevarez that, if Nevarez left the residence, “he was going to shoot her in the head.” R.

Vol. III at 74. The neighbor also reported that there was a young boy, about age two,

standing in the yard. After the argument, but before police arrived, Nevarez left the area

in a vehicle, and Dalton went inside the Kenlea house with the child.

       Two police officers arrived at the Kenlea house six minutes after the neighbor

called 911. The neighbor told them that she heard gun shots coming from the direction of

the Kenlea house. Officer Kim Northcutt, one of the officers on-site, recorded almost

everything that happened outside the Kenlea house that day using his body-worn

camera. That footage showed the following events. The officers who first responded

to the Kenlea house knocked on the front door, but no one answered. More police

officers arrived on scene to help respond to what they understood to be a potential

hostage situation. One officer began calling Dalton to come out of the house using the

public-address system of a police car. She continued to call Dalton out of the house

every few minutes. Then, concerned that Dalton was armed and barricaded in the house

with a small child, the police called in the S.W.A.T. team, which arrived approximately

thirty minutes later. Eventually, after the police had been outside of the Kenlea residence

                                             3
for one hour, Dalton exited the home voluntarily with the child and stated that he had

been sleeping.

      At some point during the standoff, Police officers interviewed Nevarez, who

was parked nearby, and she told them that there were “no firearms in the house.”

Aplt. Supp. R. Vol. I at 4. Nonetheless, concerned about the gunshots that the

neighbor heard and aware that Dalton was not allowed to possess firearms because of

a previous felony conviction, the police obtained a warrant to search the Kenlea

house, and they executed it soon after Dalton exited the house. During the search,

police found three firearms, several types of ammunition, and a gun-cleaning kit

(“the first search”). They also discovered, in the home, men’s clothing, a piece of

mail addressed to Dalton, a debit card with Dalton’s name on it, and an ID card with

Dalton’s name and photo on it. Based on the evidence found in the search, Dalton

was charged with, inter alia, being a felon in possession of firearms in violation of 18

U.S.C. § 922(g)(1).

      A number of months after the standoff incident, ATF Agent Lisa Brackeen

asked Nevarez some questions to assist in her investigation of Dalton. Nevarez did

not swear to tell the truth during the interview, but Brackeen warned her that she

could be criminally charged if she lied to a federal officer. During the interview,

Nevarez told Brackeen that the firearms the law enforcement officers found in the

Kenlea house after the standoff did not belong to Dalton but instead belonged to one

of Nevarez’s friends. Nevarez claimed that she had been “holding” the guns for her

friend for about two months when the police found them. 

stated that

                                            4
Dalton did not live in the Kenlea house, he only stayed there occasionally. Finally,

Nevarez told Brackeen that, not only did Dalton not own the guns, he also did not know

that they were in the house.

   2. The second search of the Kenlea house

       Eight months after Dalton’s initial arrest but before his trial, the police

discovered ammunition in the Kenlea house again during a second, warrant-based

search that was unrelated to the August 28 standoff. The government introduced the

evidence discovered in that search at trial over Dalton’s objection, and therefore,

even though no charges were filed as a result of the second search, it is relevant to

this appeal.

       The second search of the Kenlea house came about on May 1, 2016, just after

midnight. That evening, Officer Ryan Craine attempted to stop a red car driving in

Roswell that he knew belonged to Michael Dalton because he knew that, at the time,

Dalton had a warrant out for his arrest. However, as soon as Officer Craine flipped

on his police lights, the vehicle sped away. Officer Craine followed the car for

several blocks until he lost sight of it. Moments later, he found the car parked, with

no one inside it, in the alley behind the Kenlea house where he believed Michael

Dalton lived.

       When Officer Craine found the vehicle, he observed an AK-47 rifle in the

front seat. Officer Craine contacted a neighbor who told him that the driver jumped a

fence into the backyard of the Kenlea house. Other officers arrived on scene, and

they immediately surrounded the house and began calling the people inside to come

                                            5
out. After about thirty minutes, Dalton and Nevarez exited the house. They

explained to the police that “no one else was inside.” 

Dalton also

explained that he was not driving the red car that evening and did not know who had

his vehicle. Dalton said that both he and his girlfriend, Nevarez, had been home

since approximately 9:30 p.m. and had not left the house.

      One of the officers on scene ran a background check of Dalton and learned that

he was a convicted felon who could not legally possess firearms. As a result, Officer

Craine left the scene to apply for and obtain a warrant to search the Kenlea house for

“firearms and firearm paraphernalia including any ammunition, holsters, firearm

cases, owner’s manuels [sic], paperwork showing purchase or sale of firearms.”

He referred in his affidavit to the gun discovered in Dalton’s vehicle that

evening and noted that, “based on [his] training and experience persons who have

firearms in their vehicles also have firearms and firearm paraphernalia in their

homes.” 

Based on that information, a magistrate judge issued a warrant

that permitted the police immediately to search the Kenlea house for weapons.

      While the officers on-site were waiting for Officer Craine to return with the

warrant, they discovered a man in the backyard of the residence named Farrell

Wheeler. The officers recognized that Wheeler had a warrant out for his arrest for

murder. At that point, the officers “determined” that Wheeler had been driving Dalton’s

red car with the rifle that evening. R. Vol. III at 358. Officer Craine returned with the

search warrant either coincident to or immediately after the other officers discovered

Wheeler in the backyard. Then, although the officers had no reason to believe Wheeler

                                            6
had been in the Kenlea house that day, they executed the warrant to search the house, and

they found thirteen .22 caliber bullets in one of the bedrooms in plain view (“the

second search”). Importantly, because the officers discovered Wheeler in the

backyard (and had determined that he had been driving Dalton’s car that night) after

Officer Craine had obtained the second search warrant, Craine’s affidavit for that

warrant had not included any information about Wheeler. As mentioned above,

although Dalton was not charged with a crime based on the ammunition evidence the

officers discovered during the second search, the second search is relevant to this

appeal because the government was allowed to introduce the evidence found in that

search at Dalton’s trial to prove that he knowingly possessed the firearms and

ammunition discovered in the Kenlea house during the first search.

   3. Dalton’s trial

      At trial, the government was allowed to introduce, over Dalton’s objection,

(1) the ammunition evidence the government obtained during the second search,

(2) twenty minutes of the body-worn camera footage taken at the scene of Dalton’s

initial arrest, and (3) the testimony of four forensic experts, who concluded that no

fingerprint or DNA evidence was discovered to connect Dalton to the crimes

charged, and that the firearms discovered were functional. On the other hand,

(4) Dalton was unable to call Nevarez as a witness because she invoked her Fifth

Amendment privilege against self-incrimination and the district court accepted her

decision. (5) The district court also prohibited Dalton, on hearsay grounds, from

introducing into evidence the transcript of Agent Brackeen’s interview with Nevarez

                                            7
during which Nevarez stated that Dalton was unaware of the guns discovered during

the first search. The jury found Dalton guilty of being a felon in possession of

firearms in violation of 18 U.S.C. § 922(g)(1). Dalton appeals each of the above

evidentiary rulings.

      We agree with Dalton that the district court should have excluded the 404(b)

evidence (the ammunition discovered as a result of the second search) as the fruit of

an unlawful search, but the inclusion of that evidence was harmless error. We reject

Dalton’s remaining claims and therefore AFFIRM the district court.

                                II.   DISCUSSION

   1. Constitutionality of the Second Search

      Dalton argues that the district court erred by admitting the ammunition

evidence that the police discovered during the second search under Fed. R. Evid.

404(b) because it was the product of a search that was not supported by probable

cause. We review claims that a district court improperly admitted evidence that was

obtained in violation of the Fourth Amendment using a two-step process. First, we

consider whether the district court followed and properly applied the four-part test

for admitting evidence under Fed. R. Evid. 404(b). United States v. Hill, 

, 675–677 (10th Cir. 1995). Second, if the evidence was properly admitted under

Rule 404(b), we consider whether the district court should have excluded it

nonetheless because (1) it was unlawfully obtained under the Fourth Amendment and

(2) introduced at trial to prove an essential element of a charged offense. 

Dalton does not argue that the evidence discovered in the May 1 search failed to

                                           8
satisfy the Rule 404(b) admissibility standards. Therefore, we consider only whether

the evidence should have been excluded on constitutional grounds.

      The Fourth Amendment’s exclusionary rule applies to preclude the

government’s use of Rule 404(b) evidence if (1) it was unlawfully obtained, (2) the

government used the evidence at trial “to prove an essential element of a charged

offense,” and (3) there is “some nexus between the initial search and seizure and the

subsequent charged offense.” 

The issue presented to us pertains only to

the first element, whether the ammunition evidence found inside the Kenlea house on

May 1 was obtained as a result of an illegal search. Because the second search was

pursuant to a warrant, the issue is further refined to determining whether the warrant

was valid. Here, Dalton asserts that the warrant was invalid because evidence

obtained after Craine prepared the search warrant affidavit but before the warrant was

executed rendered the affidavit incomplete and misleading. Reviewing the

reasonableness of the second search de novo, Hill, 

, we conclude that the

search was unlawful because, at the time the officers executed the search warrant,

probable cause did not exist to support the search. Therefore, the district court

should have excluded the ammunition evidence discovered in the second search.

Nonetheless, we determine that this error was harmless.2


2
  Among the objections raised by Dalton was a claim that the May 1 search was not
supported by probable cause because Officer Craine knowingly omitted material
information from his affidavit in violation of Franks v. Delaware, 

(1978); Stewart v. Donges, 

, 582–83 (10th Cir. 1990). According to
Dalton, Officer Craine knowingly or recklessly omitted from his affidavit the fact
that the police were pursuing Wheeler that evening and ultimately found him in the
                                           9
       A. Second search violated the Fourth Amendment
       Dalton argues that the second search was not supported by probable cause at

the time the officers executed it. Thus, we consider whether the probable cause that

initially supported the warrant for the May 1 search dissipated once the officers

discovered that Wheeler rather than Dalton had been driving Dalton’s car.

       The Fourth Amendment prohibits unreasonable searches. U.S. Const. amend. IV.

In general, for a search to be reasonable, it must be supported by a warrant based on

probable cause. United States v. Ventresca, 

(1965). “Probable cause exists

when ‘there is a fair probability that contraband or evidence of a crime will be found in a

particular place.’” United States v. Grubbs, 

, 95 (2006) (citing Illinois v.

Gates, 

, 238 (1983)). “The Fourth Amendment requires probable cause to

persist from the issuance of a search warrant to its execution.” United States v. Garcia,

, 1195–96 (10th Cir. 2013). However, in some cases “probable cause may

cease to exist after a warrant is issued. The police may learn, for instance, that

contraband is no longer located at the place to be searched.” 

n.2. “Or the probable-cause showing may have grown ‘stale’ in view of the time that




backyard of the Kenlea house before they executed the warrant. However, Officer
Craine did not recklessly or intentionally omit that information. At the time the
search affidavit was prepared, the officers did not know that Wheeler had been
driving Dalton’s red car when it evaded Officer Craine. Only later, but before the
warrant was executed, did the officers discover Wheeler in the backyard and
determine that he had been the driver. Thus, Craine did not “omit” the information
about Wheeler from his affidavit; at the time he applied for the warrant, he simply
was not aware of it. Therefore, we reject Dalton’s Franks argument.

                                            10
has passed since the warrant was issued.” 

cases, the warrant will no

longer directly support the ensuring search.

       There is a plethora of cases in nearly every circuit explaining the

circumstances in which a time delay will nullify probable cause as found in the

warrant. See, e.g., Sgro v. United States, 

(1932) (holding that a twenty-

one-day delay that elapsed between an officer’s application for a search warrant and

the officer’s execution of the search warrant nullified probable cause); United States

v. Cantu, 

, 1177 (10th Cir. 2005); see also 13 A.L.R. Fed. 2d 1 (compiling

federal drug cases discussing “stale” probable cause) and 187 A.L.R. Fed. 415 (compiling

federal non-drug cases discussing same).

       However, there are far fewer examples of cases where new information, rather

than the passage of time, nullifies the probable cause articulated in a warrant. A

Sixth Circuit case, United States v. Bowling, 

(6th Cir. 1990), is the

most illustrative. In Bowling, Forest Service officers had probable cause to believe

that the defendants owned two illegal marijuana plots located on United States Forest

Service property and that evidence of that ownership was located in the defendants’

trailer. 

While one officer left the site of the trailer to obtain a search

warrant, two other officers remained there and coincidently obtained consent from

the trailer-owner to search the trailer. 

The officers searched the




                                            11
trailer, but they did not find any evidence linking the defendants to the marijuana

plots. 

       Two hours later, a police officer returned to the trailer with the search warrant

and conducted a second search, which uncovered incriminating evidence which had

been missed during the first consent-based search of the trailer. 

before

the Sixth Circuit was whether the information that the officers learned during the

consent search—that there was no apparent incriminating evidence in the trailer—

dissipated the probable cause that originally supported the warrant such that the

second search violated the Fourth Amendment. 

The Sixth Circuit

determined that it did, holding that “where an initial fruitless consent search dissipates

the probable cause that justified a warrant, new indicia of probable cause must exist to

repeat a search of the same premises pursuant to the warrant.” 

       The Sixth Circuit is not the only circuit to hold that new information can

dissipate probable cause. The Fifth and Ninth Circuits have drawn that conclusion in

comparable cases. See United States v. Ortiz-Hernandez, 

, 574 (9th Cir.

2005) (holding that probable cause to arrest a suspect for drug trafficking dissipated

after agents strip-searched the suspect and found nothing); Bigford v. Taylor, 

, 1219 (5th Cir. 1988) (holding that, although police initially had probable cause to

seize a truck as stolen because its federal safety sticker was missing and its VIN had

been altered, that probable cause dissipated when the officers learned that no vehicle

matching the truck’s description had been reported stolen); c.f. Harte v. Board of

Comm’rs of Cty. of Johnson, Kansas, 

, 1184 (10th Cir. 2017) (Phillips,

                                            12
J., concurring) (determining that, in a section 1983 case, police officers violated the

Fourth Amendment by continuing the search of a home after probable cause had

dissipated).

      Like the Sixth Circuit in Bowling, we are persuaded that probable cause becomes

stale when new information received by the police nullifies information critical to the

earlier probable cause determination before the warrant is executed. See Wayne

Lafave, Search and Seizure § 4.7(a), at 822 (5th ed. 2012). To determine whether

probable cause dissipated in this case, we ask whether a material fact in Craine’s

warrant affidavit was determined by the executing officers to have been either

inaccurate or omitted prior to the time the warrant was executed.

      If Dalton had been the driver of his car with a firearm inside it, as the officers’

initially thought, that would have made it more reasonable under the facts of this case

to believe that Dalton also had firearms in his house. However, if only Wheeler had

possession of the car at the time the firearm had been discovered in it, then that

firearm likely would not have been sufficiently linked to Dalton to support a second

warrant to search his residence. Here, the evidence in the record demonstrates that,

at first, the officers on site at the Kenlea house believed that Dalton had possessed

the firearm in his vehicle on May 1 but, by the time Craine returned with the search

warrant or shortly thereafter, the officers had learned that Wheeler had been hiding in

the backyard of the Kenlea house and that he had been the driver of Dalton’s car.

Therefore, at the time the officers executed the warrant, they had neither probable

cause to believe that Dalton possessed the gun in his vehicle nor that he was illegally

                                           13
harboring firearms inside the Kenlea house at that time. Thus, the second search was

unlawful.

      B. District court’s error was harmless
      However, we conclude that we need not set aside Dalton’s conviction even if

the “essential element” and “nexus” requirements of our Fourth Amendment test are

also satisfied because the district court’s error in permitting the government to

introduce the evidence discovered in the second search was harmless. The

harmlessness test for constitutional errors is “more exacting” than that for non-

constitutional errors. Wright & Miller, 3B Fed. Prac. & Proc. Crim. § 855, at 531

(4th ed. 2013). A constitutional error can be held harmless only if “admitting the

evidence was ‘harmless beyond a reasonable doubt.’” United States v. Hill, 

, 681 (10th Cir. 1995).

      At trial, the government was required to prove beyond a reasonable doubt that

Dalton “knowingly possessed a firearm and/or ammunition” on August 28, 2015. R.

Vol. III at 487–88. To prove its case, the government presented strong evidence,

apart from the challenged Rule 404(b) evidence, to show that Dalton lived at the

Kenlea house and knew about the guns that were discovered during the first search.

That evidence included proof of the following: During the first search, officers found

Dalton’s clothing, mail, debit card, and ID card at the Kenlea house. Two to three

months prior to the August standoff, Dalton went over to his neighbor’s house to

return a piece of mis-delivered mail and said, “I’m your neighbor. And the mail guy,

he left your letter in my box,” and then gave her the letter. R. Vol. III at 36. During

                                           14
the argument between Dalton and Nevarez on August 28, Dalton yelled that, if

Nevarez left, “he was going to shoot her in the head.” 

Finally, a neighbor

heard gunshots come from the direction of the Kenlea house during a time when Dalton

was the only adult in the home. Moreover, although the prosecutors commented on the

404(b) ammunition evidence once during closing argument, they did so only briefly

during the first closing and not at all during the rebuttal close. And, to curtail any

prejudice, the district court gave the jury a limiting instruction, which explained that

the jury could consider the ammunition evidence only “as it bears on the defendant’s

intent, knowledge, absence of mistake, and for no other purpose.” 

Given

this evidence suggesting that Dalton had knowledge of and access to the firearms in the

Kenlea house on the date of the first search, the limited use the prosecution made of the

404(b) evidence during closing argument, and the limiting instruction that the trial court

gave the jury regarding the use of the 404(b) evidence, we are persuaded that omitting

evidence of Dalton’s later unlawful possession of ammunition in 2016 “would not

have changed the jury’s determination” that Dalton knowingly possessed at least one

firearm on August 28. 

. Therefore, admitting the ammunition

evidence unlawfully obtained on May 1 was harmless beyond a reasonable doubt.

    2. Nevarez’s Invocation of her Fifth Amendment Privilege

       Dalton raises three arguments related to Nevarez’s invocation of her Fifth

Amendment right. We address each in turn, but all are subject to plain error review

because Dalton did not raise this issue below. Under the plain-error standard of

review, “the defendant must establish that (1) the district court committed error;

                                            15
(2) the error was plain—that is, it was obvious under current well-settled law; (3) the

error affected the Defendant’s substantial rights; and (4) the error seriously affected

the fairness, integrity, or public reputation of judicial proceedings.” United States v.

Chavez-Mesa, 

, 1214 (10th Cir. 2018) (internal quotation marks

omitted). We “apply the plain error rule less rigidly when reviewing a potential

constitutional error.” United States v. Weeks, 

, 1198 (10th Cir. 2011).

   A. Government did not coerce Nevarez

      First, Dalton argues that the government improperly coerced Nevarez into

invoking her Fifth Amendment privilege against self-incrimination in violation of

Defendant’s right to present a defense at trial. We disagree. A criminal defendant

has the right to present a defense, United States v. Pablo, 

, 1295 (10th

Cir. 2012), but that right is not absolute and “may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial process,” United States v.

Serrano, 

, 1215 (10th Cir. 2005), including a witness’s Fifth

Amendment privilege against self-incrimination, 

defendant’s right to

present a defense does not give way to a witness’s decision to invoke her privilege

against self-incrimination if the government has “substantially interfere[d]” with that

decision. 

This restriction on government action applies to both the

prosecution and the district court. 

“Interference is substantial when

the government actor actively discourages a witness from testifying through threats

of prosecution, intimidation, or coercive badgering.” 

(citation omitted)

(emphasis added). However, “[t]he potential for unconstitutional coercion by

                                           16
a government actor significantly diminishes . . . if a defendant’s witness elects not to

testify after consulting an independent attorney.” 

original).

       Here, the prosecutor did not interact with Nevarez directly about her decision

to testify at all, let alone actively discourage her from testifying, and Nevarez made

her decision not to testify upon receiving advice from independent counsel. Because

the record reveals no signs of undue coercion by either the prosecutor or the district

court, we conclude that neither the prosecutor nor the district court deprived Dalton

of his constitutional right to present a defense.

   B. District Court did not err by accepting Nevarez’s decision not to testify

       Dalton next argues that the district court violated his right to present a defense

by failing to “scrutinize [Nevarez’s] basis for the invocation of the Fifth Amendment

privilege against self-incrimination.” Aplt. Br. 19. A district court is responsible for

determining whether a witness’s invocation of the Fifth Amendment privilege against

self-incrimination is justified. United States v. Castorena-Jaime, 

, 931

(10th Cir. 2002). However there is no “standardized procedure” for making this

determination, United States v. Rivas-Macias, 

, 1276 n.5 (10th Cir.

2008), and the trial court should refuse to sustain the privilege “only if it is perfectly

clear that the witness is mistaken and the answers cannot possibly tend to

incriminate,” 

(internal quotation marks omitted).

       Here, it was not clear that Nevarez could not possibly incriminate herself by

testifying. The district court received briefing prior to trial that explained that, if

Nevarez testified that the firearms found in the Kenlea Street house during the first

                                            17
search were in her possession, as it seemed she intended to, she would likely

incriminate herself because, on that date, Nevarez was a methamphetamine addict

who could not lawfully possess firearms pursuant to 18 U.S.C. § 922(g)(3). Under

these circumstances, the district court did not err by accepting Nevarez’s decision not

to testify because it seemed likely that, had she testified as expected, her answers

would have implicated her in a crime.

   C. The government was not required to offer Nevarez immunity to testify

         For his final argument related to Nevarez’s decision not to testify, Dalton

asserts that his right to present his defense was violated by the government’s refusal

to offer Nevarez immunity for her testimony. We disagree. When a witness invokes

her privilege against self-incrimination, the government may compel that witness to

testify by granting her immunity. 18 U.S.C. § 6003. Although “the decision to grant

immunity lies in the exclusive discretion of the prosecutor,” 

(emphasis in original), we have “left open the possibility ‘that where the

prosecutor’s denial of immunity is a deliberate attempt to distort the fact finding

process, a court could force the government to choose between conferring immunity

or suffering an acquittal.’” United States v. LaHue, 

, 1014 (10th Cir.

2001).

         While we recognize that the prosecutor’s discretion is subject to constitutional

constraints, United States v. Armstrong, 

, 464 (1996), “we presume the

United States attorney’s office has properly discharged its official duties absent clear

evidence to the contrary,” 

. Dalton asserts that the only

                                            18
reason the government denied Nevarez immunity “was to keep her from testifying.”

Aplt. Br. 21. But he has not provided sufficient facts to rebut our presumption of

good faith on the part of the government attorney.

      Dalton argues that two facts prove his point. First, he points out that ATF

Agent Brackeen told Nevarez during an interview that she was not “in any trouble or

anything like that,” Aplt. Supp. R. Vol. I. at 3. However, the agent immediately

supplemented that statement by warning Nevarez that if she “lie[d] to a federal

officer,” she could be criminally charged. 

Brackeen never promised

Nevarez that she would not be charged or prosecuted. Second, he argues that

Nevarez admitted to the government that she had illegally possessed the guns found

in the Kenlea house on August 28 one-and-a-half years before Dalton’s trial, and,

despite that knowledge, the government chose not to prosecute her during that time.

However, at that point, the government did not necessarily have enough information

to bring charges against Nevarez; for example, it did not have a sworn statement from

her admitting that she violated section 922(g)(3). More to the point, just because the

government had not yet charged Nevarez at the time of Dalton’s trial does not prove

that it never intended to or would not have done so after she testified at trial.

      Thus, the record does not suggest that the government attempted to distort the

factfinding process such that it should have been required to offer Nevarez immunity.

   3. Body-Worn Camera Footage

      Next, we consider whether the district court abused its discretion under Rule

403 by allowing the government to show the jury twenty minutes of an hour-long

                                            19
videotape of the events leading up to Dalton’s arrest or by admitting the entire hour-

long video into evidence.3 Although it showed six or more officers and multiple

vehicles on site, including at one point an armored S.W.A.T. vehicle, we have

reviewed the video and do not find sufficient prejudice that we would conclude the

district court abused its discretion in ruling that the probative value was not

significantly outweighed by prejudice. United States v. Tome, 

, 1459

(10th Cir. 1995). Therefore, we affirm the district court.

       The body-worn video evidence has both probative and prejudicial value. On

the one hand, the video shows context and serves as res gestae evidence. United

States v. Ford, 

, 1268 (10th Cir. 2010). The government argued at trial

that Dalton’s refusal to come out of the house for an hour demonstrated

“consciousness of guilt.” R. Vol. III at 529. On the other hand, it shows

considerable law enforcement presence that, ultimately, was not needed. However,

even though the police officers did not need to use force, the video accurately

portrays the force the police believed they might have needed to resolve the potential

hostage situation and standoff. Importantly, the district court required the

government to redact all portions of the video that referenced Dalton’s prior dealings

with law enforcement and it limited the government to playing only twenty minutes



3
 The prosecutor stated during closing argument, “And there is a video that you can
watch. It is in evidence. And you can feel free to watch the entire thing.” R. Vol. III at
523. Of course, there is no evidence of whether or not the jury viewed any more of the
video than the twenty minutes played at trial. Regardless, our analysis applies to the
entire video because the video’s content is similar throughout.
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of the video during trial. We cannot say that the district court abused its discretion

by determining that the prejudicial value of the video did not substantially outweigh

the probative value, especially in light of the government’s efforts to shorten and

redact the video. Therefore, we affirm the district court’s decision to admit the

video.

   4. Government’s Expert Witnesses

         Next, Dalton argues that the district court erred by permitting the government

to call four expert witnesses—two fingerprint experts, a DNA expert, and one firearm

expert—to testify to the same conclusion, namely, that they did not find any physical

evidence connecting Dalton to the firearms in the Kenlea house. We review the

district court’s decision to allow the experts to testify over Dalton’s relevance and

Rule 403 objections for an abuse of discretion.

         First, we have no trouble finding that the expert testimony was relevant.

Evidence is relevant if “it has any tendency to make a fact more or less probable than

it would be without the evidence” and “the fact is of consequence in determining the

action.” Fed. R. Evid. 401. The two fingerprint experts and the DNA expert each

explained why physical evidence is often absent from crime scenes, and absence-of-

evidence testimony has been found to be relevant by several other circuits. United

States v. Tavares, 

, 7 (1st Cir. 2016); see also, e.g., United States v.

Mitchell, 

, 970 (9th Cir. 2007). We agree with those circuits and

conclude that the district court did not abuse its discretion here by admitting the

fingerprint and DNA expert testimony. The fourth expert explained that the firearms

                                            21
discovered during the first search were functional, which made it more likely that the

guns were “designed to . . . expel a projectile,” 18 U.S.C. § 921(a)(3), an element the

prosecution was required to prove. That testimony was relevant also.

      Second, Dalton argues that the “sheer volume” of the expert testimony

introduced by the prosecution “encouraged a conviction on an improper basis.” Aplt.

Br. 34. It is likely the government could have made its points about the forensic

evidence by using one fingerprint expert instead of two, but that choice was not

“needlessly . . . cumulative,” Fed. R. Evid. 403, nor a waste of time given that each

expert testified about different pieces of evidence. We affirm the district court’s

decision to permit the expert testimony.

   5. Nevarez’s Unsworn Statements to ATF Agent

      Finally, Dalton argues that the district court abused its discretion by refusing

to admit the transcript of Nevarez’s interview with Agent Brackeen under the

residual exception to the rule against hearsay. That exception allows district courts

to admit hearsay evidence if, among other things, it has “equivalent circumstantial

guarantees of trustworthiness” to the exceptions in rules 803 and 804. Fed. R. Evid.

807. The district court rejected that argument and excluded the interview transcript

as hearsay, which was not an abuse of discretion. The residual exception “should be

used only ‘in extraordinary circumstances where the court is satisfied that the

evidence offers guarantees of trustworthiness and is material, probative and

necessary in the interest of justice.’” 

.



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       The district court denied Dalton’s motion to admit the statements in part

because it determined that Nevarez’s statements were not trustworthy because they

were not sufficiently corroborated.

       Trustworthiness is dependent on the totality of the circumstances. Though
       courts have considerable leeway in their consideration of appropriate
       factors, the relevant circumstances are those that surround the making of
       the statement and that render the declarant particularly worthy of belief,
       such that the test of cross-examination would be of marginal utility.

United States v. Becker, 

, 1230 (10th Cir. 2000) (citations and internal

quotation marks omitted). The record supports the district court’s conclusion that

Nevarez’s out-of-court statements were not sufficiently trustworthy. Nevarez did not

speak under oath nor was she subject to cross-examination or other scrutiny

regarding these statements. Moreover, cross-examination would have been of

particular utility in this case because Nevarez’s statements to Agent Brackeen

contradicted the statement she made to police during the standoff that there were “no

firearms in the house.” Supp. R. I at 4. The government also would have cross-

examined Nevarez about her admitted methamphetamine use and Dalton’s past abuse

toward her, two facts that the jury might have understood to undermine Nevarez’s

credibility.

       Dalton argues that Nevarez’s statements were as trustworthy as sworn

testimony because the ATF agent asked Nevarez, “do you understand that, if you lie

to a federal officer, you can be charged?” to which Nevarez responded, “okay.” 

The agent’s warning is somewhat probative of reliability, but, although Nevarez



                                          23
acknowledged that she understood the potential for prosecution, she did not swear to

tell the truth at any point during the conversation.

      Dalton further contends that Nevarez’s statements were reliable because they

were akin to statements against interest that are excepted from the hearsay bar under

Fed. R. Evid. 804(b)(3). Here, Dalton argues that Nevarez’s statements were against

her penal interests because, just as the government argued in order to request an

attorney to represent Nevarez, by admitting that she possessed the firearms in August

2015, Nevarez was admitting liability under section 922(g)(3). That may be true, but

it does not, in this context, adequately establish the reliability of Nevarez’s

statements.

      Finally, Dalton argues that Nevarez’s statements are trustworthy because they

were corroborated. Although some of what Nevarez stated was corroborated, no

evidence corroborated Nevarez’s contention that the firearms belonged to a friend of

hers, the statement most relevant to Dalton’s defense.

      We acknowledge that there are arguments on both sides of this issue.

However, given Nevarez’s prior inconsistent statement and the utility that cross-

examination would have provided in this case, we cannot say the district court abused

its discretion by prohibiting Dalton from introducing the transcript of Nevarez’s

statements to Agent Brackeen.

                               III.   CONCLUSION

      For the foregoing reasons, we AFFIRM Dalton’s conviction.



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