                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2458

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

B RIAN D ODDS, a/k/a
H ORACE B. W ILSON,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
           No. 06 CR 280—Charles N. Clevert, Jr., Judge.



     A RGUED D ECEMBER 1, 2008—D ECIDED JUNE 24, 2009




 Before B AUER, R OVNER and E VANS, Circuit Judges.
  R OVNER, Circuit Judge. A jury convicted Brian Dodds,
whose legal name is Horace Wilson, of unlawfully possess-
ing a firearm in or affecting commerce following a
felony conviction. See 18 U.S.C. § 922(g)(1). Dodds
appeals, arguing that the district court erred in allowing
the government to elicit testimony concerning his legal
name and in permitting one of the officers who arrested
him to recount the physical description given by an
2                                                 No. 08-2458

unidentified witness who had seen Dodds pointing a
gun at people. Because neither evidentiary ruling was
an abuse of discretion or a violation of his constitutional
rights, we affirm Dodds’ conviction.


                              I.
   At approximately 10:15 on the evening of November 10,
2005, Milwaukee’s emergency services center received a
911 call reporting “shots fired” in the vicinity of 37th and
Galena Streets. Police officer Timothy Koestering was
among the police officers dispatched to that location to
investigate. Seeing nothing upon his arrival, Koestering
pulled his vehicle over and contacted the 911 caller to
verify the report. Just after he finished that call, an uniden-
tified person driving a red Dodge pulled alongside of
Koestering’s vehicle and told him that he had seen an
African American male, wearing a black jacket and a
black knit cap, pointing a gun at people two blocks away
at the corner of 35th and Galena.
  Koestering and his fellow officers proceeded at once
to 35th and Galena. Officer James Williams and his
partner, Officer Tony Knox, were among the first to
arrive. As they pulled up, Williams saw a man matching
the description given Koestering emerge from the
gangway between two houses and walk into the Edge
Sports Bar on the corner. Williams and Knox followed the
man into the bar and asked him to step outside. They
patted him down but did not discover a weapon on his
person. When they asked the man to identify himself,
he gave his name as Brian Dodds.
No. 08-2458                                             3

  Koestering placed Dodds in the back of his squad car
and then used the vehicle’s computer interface to see if
there were any outstanding warrants for Dodds. He
found none.
  Meanwhile, Officer Bradley Schlei was searching the
gangway from which his colleagues had seen Dodds
emerge. He found a Taurus .38-caliber revolver lying on
the ground. The gun was left in place until it could be
properly photographed by crime scene technicians. Schlei
later recovered six spent bullet cartridges from inside
of the gun.
  After Schlei reported the discovery of the firearm to
the other officers and while they were awaiting the
arrival of the technicians, Jerry Watkins drove by and
informed the officers that he had seen a man with a gun
at 35th and Galena earlier that same evening while
driving his friend Dawn Woods to work. Although
Dodds was sitting in the back seat of Koestering’s
police car when Watkins spoke to the officers, Williams
would later testify that Watkins was too far away
from Koestering’s vehicle for Watkins to have seen him
in the darkness.
  At that point Dodds was placed under arrest and taken
to a police station. Koestering created a sequential photo
array later that evening to show to Watkins and Woods.
When they were shown the array early the next morning,
Woods, but not Watkins, identified Dodds as the man
who had pointed a gun at them. At trial, Woods
thought that the weapon recovered from the gangway
was the one she had seen Dodds carrying, although
she could not be positive.
4                                               No. 08-2458

  Dodds was subsequently indicted and tried on the
charge that he had unlawfully possessed a firearm fol-
lowing a felony conviction. Watkins and Woods were
among the witnesses for the government. Watkins
testified that as they drove by the intersection of 35th and
Galena en route to Woods’ workplace, Dodds had ap-
proached their vehicle and shouted something at them.
His curiosity piqued, Watkins circled the block and
drove back to where Dodds was standing. Woods
testified that when Watkins asked Dodds what was
going on, Dodds briefly pointed a gun at Watkins. But
then, according to Woods, Dodds backed off, put the
gun into his pants pocket, and walked away. “I thought
you was somebody else,” Woods recalled Dodds remark-
ing. R. 74 at 188.
  Milwaukee Police Department (“MPD”) document
examiner Cole Stephens testified that he had examined a
latent partial print recovered from the cylinder of the .38-
caliber revolver that Schlei had discovered near the
intersection of 35th and Galena. In Stephens’ opinion,
the print matched Dodds’ right middle finger.
   MPD latent print examiner Douglas Knueppel had
compared a set of fingerprints taken from Dodds in
connection with his November 2005 arrest with prints on
file in Illinois under the name of Horace Wilson. He
concluded that the prints were a match and that
Dodds and Wilson were the same individual.
  Sharon Polakowski, a forensic scientist with the Wis-
consin State Crime Laboratory, testified that DNA from
three different individuals had been recovered from the
No. 08-2458                                              5

revolver. However, none of the DNA matched that of
Dodds.
  Dodds took the witness stand in his own defense. He
testified that he began using the name Brian Dodds in
2000, after he discovered that the man he had thought
was his father—also named Horace Wilson—was not.
However, Dodds had never legally changed his name
from Horace Wilson. He denied any contact with
Watkins and Woods on the evening of November 10, and
he also denied having possessed, fired, or brandished
the revolver that Schlei discovered in the gangway near
35th and Galena. Dodds testified that he had been at the
Edge Sports Bar from 8:30 onward that evening. He
said that he was one of seven to ten men with black
jackets that the police removed from the bar, placed
against a wall, and searched. According to Dodds, the
police went down the line of men repeatedly asking an
unidentified individual that Dodds could not see, “Is
this him?” Dodds also testified that after the police took
him into custody and transported him to the police station,
he was beaten into unconsciousness after he refused to
have his fingerprints electronically scanned. When asked
by the government how his print might have gotten onto
the revolver that Schlei found, Dodds implied that
police might have placed the gun into his hand while
he was unconscious.
  Police officers Koestering, Williams, Schlei, and Kevin
Fellmeth took the stand in rebuttal and denied Dodds’
account of the events surrounding his arrest. Koestering,
Williams, and Schlei each testified that Dodds was the
6                                             No. 08-2458

only man who had been taken from the bar and that no
one, including Dodds, had been shown to a witness for
identification at the scene. Fellmeth was present when
Dodds was booked at the police station and testified
that a struggle occurred when Dodds refused to place
his fingers on an electronic fingerprint scanner. Dodds
had briefly passed out during the struggle. Fellmeth
denied that anyone had hit or punched Dodds or placed
a gun in his hand. Koestering, who was also present for
the struggle, also denied that anyone had struck
Dodds or placed a gun in his hand. Schlei, who had
taken the .38-caliber revolver into his custody at 35th
and Galena, likewise denied that he or any other officer
had placed a gun into Dodds’ hand.
  The jury convicted Dodds on the felon-in-possession
charge. The district court later ordered him to serve a
prison term of 120 months, the statutory maximum,
which was below the range of 151 to 188 months advised
by the Sentencing Guidelines.


                           II.
A. Allowing Reference to Dodds’ Legal Name
  In advance of trial, Dodds asked the court to bar any
reference to the fact that his birth name was Horace
Wilson. The government at first posed no objection to
Dodds’ request, but later altered course and opposed
the motion. The government attributed its change of
heart to its belated discovery that Dodds had never
legally changed his name and to its realization that Dodds
No. 08-2458                                             7

had an incentive not to use the name Wilson with the
police because he had two prior felony convictions in
Illinois under that name, but only misdemeanor convic-
tions in Wisconsin under the name of Dodds. R. 43 at 2-3.
The government argued that the defendant’s use of a
name other than his legal name was proof of his con-
sciousness of guilt, and so evidence that he had a name
other than the one he gave to police at the time of his
arrest was admissible to put the name “Brian Dodds” in
that context. The court denied Dodds’ motion in limine
on that basis. “[T]here may very well be an innocent
explanation for the use of both names, but . . . the Gov-
ernment can also infer that there was consciousness of
guilt,” the court reasoned. R. 74 at 13.
  Dodds contends that the district court’s decision to
allow reference to the fact that he had a name other
than Dodds was an error that prejudiced him. He argues
that although he had not legally changed his name, he
had used the name Brian Dodds for years. Consequently,
identifying himself to the authorities as Brian Dodds was
consistent with the name he used every day and was not
proof that he was conscious of having committed a
crime (unlawful possession of a firearm by a felon) and
was attempting to evade detection of his offense by
giving the police a false name. Allowing reference to
the fact that he had a different name prejudiced him in
the eyes of the jurors, Dodds contends, because the use
of an alias suggests that one has something to hide. He
believes that the evidence was irrelevant and inadmissible
under Evidentiary Rules 401 and 402, and in any case
8                                               No. 08-2458

should have been excluded as unduly prejudicial pursu-
ant to Rule 403.
  For several reasons, we reject the notion that the district
court abused its discretion in denying Dodds’ motion in
limine. First, whatever name Dodds was using, and for
whatever reason, Horace Wilson was his legal name.
That name was a matter of public record, he had felony
convictions under that name, and one may expect that
one’s legal name, like other matters of record (one’s
age, residence, and place of employment), will be the
subject of inquiry at trial. The use of a name other than
one’s legally-recognized name may or may not be indica-
tive of wrongdoing, but reference to one’s legal name
is hardly unusual or unexpected, particularly in a legal
proceeding. It is not as if Dodds were in the witness
protection program. As for the probative value of the
fact that he was using a name other than his legal
name, granted, Dodds was not a name that he made up
on the spot when the police hauled him out of the bar:
he had misdemeanor convictions under that name,
which tends to confirm his own account that he had
used that name for some time. Still, we take the govern-
ment’s point: knowing that he had a felony conviction
under the name of Wilson, which precluded him from
carrying a firearm, he might have used the name Dodds
in part to disguise his firearms disability. In any case, we
doubt very much that Dodds was unduly prejudiced by
reference to his legal name. The references were not
protracted, the government did not mention it in its
closing arguments, and there was a great deal of evidence
No. 08-2458                                                     9

pointing directly to his culpability. There was no error,
and certainly no prejudicial error, in permitting reference
to the name Horace Wilson.1


B. Testimony Concerning Description Given By Unidenti-
   fied Witness
  As we have noted, Officer Koestering testified at trial
that when officers arrived at the intersection of 37th and
Galena, an unidentified individual told the officers that
a black man in a black jacket and black cap was pointing
a gun at people two blocks away at 35th and Galena.
Because that individual was never identified and did not
testify at trial, Dodds contends that allowing Koestering
to repeat his statement was a violation of his rights
under the confrontation clause of the Sixth Amendment.
See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004).
  We conclude for two reasons that the admission of the
witness’s out-of-court statement did not violate Dodds’
confrontation rights. First, Davis v. Washington, 547 U.S.
813, 126 S. Ct. 2266 (2006), holds that an out-of-court
statement implicating the defendant may be admissible
as a non-testimonial statement when the statement was
elicited for the primary purpose of helping the police



1
  This is not a case like United States v. Williams, 739 F.2d 297,
299-301 (7th Cir. 1984), in which we concluded that reference
to the defendant’s nickname “Fast Eddie,” a name that is
suggestive of bad moral character, was unduly prejudicial.
10                                              No. 08-2458

resolve an ongoing emergency rather than to determine
what had occurred in the past. Id. at 822, 827-28, 126 S. Ct.
at 2273-74, 2276-77. In this case, the police were
responding to a 911 call reporting “shots fired” and had
an urgent need to identify the person with the gun and
to stop the shooting. The witness’s description of the
man with a gun was given in that context, and we
believe it falls within the scope of Davis. Second, the
problem that Crawford addresses is the admission of
hearsay, which is, of course, an out-of-court statement
admitted for its truth. E.g., United States v. James, 487
F.3d 518, 524-25 (7th Cir. 2007). The witness’s statement
to Koestering was not admitted for its truth—that the
witness saw the man he described pointing a gun at
people—but rather to explain why the police proceeded
to the intersection of 35th and Galena and focused
their attention on Dodds, who matched the description
they had been given. This was a permissible, non-hearsay
purpose. United States v. Breland, 356 F.3d 787, 792 (7th
Cir. 2004).
  The district court did not give a limiting instruction
advising the jury not to consider the witness’s statement
to Koestering for its truth but solely as an explanation
for why Koestering and the other officers approached
and questioned Dodds. But the court was not asked to
give such an instruction, the lack of such an instruction
has not been raised on appeal, and, in any case, we
doubt that Dodds was prejudiced by the lack of a
limiting instruction. The reference to the witness’s state-
ment was brief, it was not mentioned in closing argu-
ment, and there was ample direct evidence, including in
No. 08-2458                                          11

particular the testimony of Watkins and Woods, that
Dodds was seen with a gun, and of course the fingerprint
evidence indicating that he had held the gun. See id.


                          III.
  The district court did not abuse its discretion in
allowing testimony concerning Dodds’ legal name or the
out-of-court statement to a police officer describing a
man the witness had seen pointing a gun at individuals.
We therefore A FFIRM Dodds’ conviction.




                         6-24-09
