                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 15, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-1131
          v.                                             (D. Colorado)
 SH AW N C. SH IELDS, also known as              (D.C. No. 05-CR-342-REB)
 Shorty,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Shawn Shields was convicted of retaliating against a witness, see 18 U.S.C.

§ 1513, and conspiring to retaliate against a witness, see id. § 371. He appeals

only the conspiracy conviction. He challenges the admission at trial of a

statement to a law-enforcement officer by the witness he assaulted, contending

that admission of the statement violated the hearsay rule and the Confrontation

Clause. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      On M ay 18, 2005, Jessie Cluff, a Colorado inmate, testified as a

government witness in the federal prosecution of two fellow Colorado inmates,

Carl Pursley and W endell W ardell, for conspiring to file fraudulent tax returns

while in prison. M r. Shields and another Colorado inmate, Vernon Templeman,

were called as defense witnesses, although they apparently knew nothing about

the claimed offenses. On M ay 23 all five inmates were in holding cells at the

federal district court in Denver. M r. Shields was in the same cell as Cluff and

Templeman. Pursley and W ardell were in a nearby cell. A video surveillance

camera recorded M r. Shields and Templeman attacking Cluff.

      At M r. Shields’s trial in this case, Cluff testified that while in the cell with

M r. Shields before the assault, he heard shouted conversation between Pursley

and M r. Shields. According to Cluff, M r. Shields thanked Pursley for getting him

transferred temporarily from state prison to the custody of the U.S. M arshals,

Pursley responded that “there was a reason why [M r. Shields] w as down there,”

and M r. Shields replied that “it would be easier than he thought.” In addition,

Cluff said that he saw M r. Shields and Templeman whispering to one another;

that Templeman also engaged in shouted conversation with Pursley; and that

Pursley yelled that Harry Hall, a fourth prisoner in the cell with M r. Shields,

Templeman, and Cluff, “was all right, he was cool.” Cluff testified that

M r. Shields then “told me that my worst nightmare had come true,” “[t]hat he was

friends with Carl Pursley,” and that “the whole purpose of his trip was to get me.”

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      Another witness was a prisoner who had been in the same holding cell as

W ardell and Pursley. He testified that he had heard conversations between the

holding cells and that he also heard either W ardell or Pursley refer to Cluff and

say that M r. Shields “will take care of him.”

      The testimony that M r. Shields challenges came from Deputy U.S. M arshal

Lawrence M oltzan. M oltzan tended to Cluff after the assault and transported him

to the hospital. M oltzan testified that Cluff told him (1) that before the assault

M r. Shields shouted to Pursley, “Hey, Cluff is down here with us,” and (2) that

Pursley responded, “W ell, you know what to do.” Because these statements were

offered for the truth of what Cluff had asserted, they were hearsay.

      The district court admitted Deputy M oltzan’s challenged statement as an

“excited utterance” under Fed. R. Evid. 803(2). W e will assume, without

deciding, that the exception was not applicable and admission of the statement

was error. Because M r. Shields objected to the court’s ruling, “we review for

nonconstitutional harmless error.” United States v. Ledford, 443 F.3d 702, 707

(10th Cir. 2005). Nonconstitutional error is harmless “unless it had a ‘substantial

influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such

effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc)

(quoting Kotteakos v. United States, 328 U.S. 750, (1946)). In our view,

admission of M oltzan’s statement was harmless under this standard. The

evidence of a conspiracy was overwhelming. Not only had M r. Shields

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unquestionably conspired with cellmate Templeman, but the assault could be

explained only by the arrangement these two had with Pursley.

      B ecause M r. Shields made no Confrontation Clause argument below, we

review for plain error his Confrontation Clause argument on appeal. See United

States v. LaH ue, 261 F.3d 993, 1009 (10th Cir. 2001). To establish plain error,

M r. Shields must show “(1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc) (internal quotation marks omitted). Because of the

overwhelming evidence of guilt, the third prong of this test cannot be satisfied, so

we need not consider w hether there was any error. Cf. United States v. Lott, 310

F.3d 1231, 1242 (10th Cir. 2002).

      W e AFFIRM the judgment of the district court.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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