United States v. Dalton , 918 F.3d 1117 ( 2019 )

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. Id. Nevarez also 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.” Id. at 33. 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.”
Id. at 32. 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.” Id. at 33. 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, 60 F.3d
672, 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. Id. at 677.
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.” Id. at 677. 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, 60 F.3d 681, 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, 438 U.S. 154(1978); Stewart v. Donges, 915 F.2d 572, 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, 380 U.S. 102 (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, 547 U.S. 90, 95 (2006) (citing Illinois v.
Gates, 462 U.S. 213, 238 (1983)). “The Fourth Amendment requires probable cause to
persist from the issuance of a search warrant to its execution.” United States v. Garcia,
707 F.3d 1190, 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.” Grubbs, 547 U.S. at 95
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.” Id. In those 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, 287 U.S. 206 (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, 405 F.3d 1173, 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, 900 F.2d 926 (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. Id. at 928. 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. Id. at 928–29. The officers searched the
11
trailer, but they did not find any evidence linking the defendants to the marijuana
plots. Id. at 929.
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. Id. The issue 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. Id. at 930–31. 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.” Id. at 932.
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, 427 F.3d 567, 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, 834 F.2d
1213, 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, 864 F.3d 1154, 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, 60 F.3d
672, 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.” Id. at 74. 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.” Id. at 490. 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. Hill, 60 F.3d at 681. 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, 894 F.3d 1206, 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, 653 F.3d 1188, 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, 696 F.3d 1280, 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, 406 F.3d 1208, 1215 (10th Cir. 2005), including a witness’s Fifth
Amendment privilege against self-incrimination, id. But a 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. Id. at 1216. This restriction on government action applies to both the
prosecution and the district court. Id. at 1215–16. “Interference is substantial when
the government actor actively discourages a witness from testifying through threats
of prosecution, intimidation, or coercive badgering.” Id. at 1216 (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.” Id. (emphasis in 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, 285 F.3d 916, 931
(10th Cir. 2002). However there is no “standardized procedure” for making this
determination, United States v. Rivas-Macias, 537 F.3d 1271, 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,” Castorena-Jaime, 285 F.3d at 931 (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,” Serrano, 406 F.3d at
1218 (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, 261 F.3d 993, 1014 (10th Cir.
2001).
While we recognize that the prosecutor’s discretion is subject to constitutional
constraints, United States v. Armstrong, 517 U.S. 456, 464 (1996), “we presume the
United States attorney’s office has properly discharged its official duties absent clear
evidence to the contrary,” Serrano, 406 F.3d at 1218. 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. Id. at 3. 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, 61 F.3d 1446, 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, 613 F.3d 1263, 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.
20
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, 843 F.3d 1, 7 (1st Cir. 2016); see also, e.g., United States v.
Mitchell, 502 F.3d 931, 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.’” Tome, 61 F.3d at 1452.
22
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, 230 F.3d 1224, 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.” Id. at
3. 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.
24