                  United States Court of Appeals
                               For the Eighth Circuit
                            ___________________________

                                 No. 18-3375
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                          v.

                                  Kison Robertson

                                     Defendant - Appellant
                                   ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Rapid City
                                   ____________

                           Submitted: October 18, 2019
                               Filed: January 23, 2020
                                 ____________

Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
                              ____________

GRUENDER, Circuit Judge.

       Kison Robertson appeals his conviction and sentence for assault with a
dangerous weapon, 18 U.S.C. §§ 113(a)(3), 1152, assault resulting in serious bodily
injury, 18 U.S.C. §§ 113(a)(6), 1152, and discharge of a firearm during the
commission of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). Robertson
challenges two of the district court’s evidentiary rulings, its denial of a requested
jury instruction, and its imposition of three supervised release conditions. We affirm
the evidentiary rulings, the denial of the proposed instruction, and two of the
supervised release conditions. We vacate and remand to the district court the
condition prohibiting Robertson from consuming alcohol or visiting establishments
that primarily serve alcohol.

                                          I.

       On March 30, 2017, Robertson, Urva Quick Bear, Sr., and Urva Quick Bear,
Jr. entered into a physical altercation at Evergreen Housing in Porcupine, South
Dakota. The altercation ended, and Robertson left the scene in his vehicle while the
Quick Bears remained. Robertson admitted he then drove back to the scene within
a matter of minutes. Multiple witnesses testified that Robertson returned with a gun
and fired two shots, one in the direction of Quick Bear, Jr. and one in the direction
of Quick Bear, Sr., hitting Quick Bear, Sr. in the abdomen. Robertson admitted that
he fired the shots but asserted he only intended to scare the Quick Bears away and
protect himself.

       A grand jury indicted Robertson. The jury convicted him of one count each
of assault with a dangerous weapon, assault resulting in serious bodily injury, and
discharge of a firearm during the commission of a crime of violence. The district
court calculated a total offense level of 24, a criminal history category of VI, and an
advisory sentencing guidelines range of 77 to 96 months for the assault offenses,
plus a mandatory 10-year-minimum consecutive sentence for the firearm-discharge
offense. The district court sentenced Robertson to 197 months’ imprisonment and 3
years’ supervised release. The district court also imposed several supervised release
conditions, including three special conditions that were recommended in the
presentence investigation report. Robertson did not object to any of the conditions
before or during the sentencing hearing.

       Robertson appeals his conviction on the grounds that the district court abused
its discretion by admitting certain evidence at trial and denying his proposed jury



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instruction. He also argues the court improperly imposed three supervised release
conditions.

                                          II.

       First, Robertson argues that the district court improperly admitted an
anonymous 911 call from the scene of the altercation that contained a statement
identifying Robertson as “the same one that shot his gun over here last month.”
Robertson argues that this evidence violated the Confrontation Clause of the United
States Constitution and that it should have been excluded under Federal Rule of
Evidence 403. We review denials of confrontation clause objections de novo, United
States v. Lee, 374 F.3d 637, 643-44 (8th Cir. 2004), and review challenges under
Rule 403 for an abuse of discretion, United States v. Guzman, 926 F.3d 991, 999
(8th Cir. 2019).

       The Confrontation Clause prohibits the admission of testimonial hearsay
unless the declarant is unavailable and the defendant has had a prior opportunity to
cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). We
have held that 911 calls are admissible as nontestimonial statements when they are
“excited utterances.” See United States v. Brun, 416 F.3d 703, 707 (8th Cir. 2005);
United States v. Phelps, 168 F.3d 1048, 1054-55 (8th Cir. 1999). An excited
utterance is “[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
Phelps, 168 F.3d at 1054 (quoting Fed. R. Evid. 803(2)). We also have held that
911 calls that are made to “enable police to identify and apprehend an armed,
threatening individual . . . [are] not testimonial in nature and thus d[o] not implicate
the Confrontation Clause.” United States v. Mitchell, 726 F. App’x 498, 502 (8th
Cir. 2018) (per curiam).

      We hold that the admission of the challenged 911 call here did not violate
Robertson’s confrontation right because the call was not testimonial in nature. The
statements on the call were excited utterances made “under the stress of excitement”


                                          -3-
caused by the “startling event” of the shooting involving Robertson and the Quick
Bears. See Phelps, 168 F.3d at 1054; Brun, 416 F.3d at 708 (noting that statements
were “unstructured” and “not the product of police interrogation” in determining
they were excited utterances). The 911 caller breathlessly described the shooting by
saying Robertson “just now shot at Urva” and pleaded with the dispatcher, saying
“Hurry, hurry! He’s going to come back with a gun!” Moreover, the statement that
describes Robertson as the “same one who shot his gun over here last month,” was
intended to help police “identify and apprehend an armed, threatening individual.”
See Mitchell, 726 F. App’x at 502. For these reasons, the challenged 911 was a
nontestimonial statement that does not implicate the Confrontation Clause.

       We also hold the district court did not abuse its discretion in admitting this
call over Robertson’s Rule 403 objection. See Guzman, 926 F.3d at 999. Rule 403
provides that a district court may exclude evidence if “its probative value is
substantially outweighed by a danger of . . . unfair prejudice” or by considerations
of whether counsel is “needlessly presenting cumulative evidence.” Fed. R. Evid.
403. Robertson argues that the probative value of the challenged 911 call was
substantially outweighed by its potential for prejudice and was needlessly
cumulative.

       We conclude that the district court did not abuse its discretion in deciding that
the probative value of the challenged 911 call was not substantially outweighed by
the risk of unfair prejudice stemming from the description of Robertson as “the same
one that shot his gun over here last month.” The challenged 911 call is the only one
of five admitted 911 calls that named Urva Quick Bear, Sr. as the person at which
Robertson was shooting. In addition, the call is significant in that it describes
Robertson as shooting “at Urva,” which was probative of Robertson’s intent to shoot
Urva Quick Bear, Sr., and not merely warn him, as Robertson testified was his intent.
See Phelps, 168 F.3d at 1058 (noting that evidence had “significant probative value”
when it showed defendant’s intentional hostility toward the alleged victim).
Although the call also referenced a prior bad act committed by Robertson, neither
party claims that this statement was highlighted or even discussed during trial. See


                                          -4-
United States v. Halk, 634 F.3d 482, 488 (8th Cir. 2011) (finding that evidence of a
defendant’s previous firearms offenses was not unfairly prejudicial when the court
limited references to them during trial). In weighing the probative value of evidence
against the dangers of unfair prejudice, “the general rule is that the balance should
be struck in favor of admission.” United States v. Dennis, 625 F.2d 782, 797 (8th
Cir. 1980). Despite the risk of prejudice in admitting the statement regarding the
shooting “last month,” we do not find that the district court abused its broad
discretion in determining this risk did not substantially outweigh the call’s probative
value. See Halk, 634 F.3d at 487 (“We review the court’s decision to admit such
[404(b)] evidence for an abuse of discretion, and will reverse only when the evidence
clearly had no bearing on the case . . . .”).

       Robertson also argues that the challenged 911 call should have been excluded
under Rule 403 because it was needlessly cumulative. “Evidence is ‘cumulative’
when it adds very little to the probative force of the other evidence” and its
contribution to the truth “would be outweighed by its contribution to the length of
the trial, with all the potential for confusion . . . that a long trial creates.” United
States v. Williams, 81 F.3d 1434, 1443 (7th Cir. 1996); cf. United States v. Harris-
Thompson, 751 F.3d 590, 601-02 (8th Cir. 2014) (concluding that the district court
did not abuse its discretion when it excluded as cumulative a lengthy, forty-five-
minute video). The 911 call here had probative value, as discussed above, and to the
extent any evidence it contained was cumulative, the call was less than two minutes
in length and therefore did not greatly lengthen the trial or burden the jury.
Therefore, the district court did not abuse its discretion in admitting it into evidence.

       Second, Robertson argues that testimony that Quick Bear, Sr. owed Robertson
twenty dollars for marijuana should also have been excluded under Rule 403. The
Government responds that Quick Bear, Sr.’s testimony about this debt was
admissible as part of the res gestae of the crime because it supplied a possible reason
for the initial physical altercation. Res gestae, “also known as intrinsic evidence, is
evidence of wrongful conduct other than the conduct at issue . . . offered for the
purpose of providing the context in which the charged crime occurred.” United


                                          -5-
States v. Campbell, 764 F.3d 880, 888 (8th Cir. 2014) (internal quotation marks
omitted); see United States v. Johnson, 463 F.3d 803, 808 (8th Cir. 2006) (stating
that Federal Rule of Evidence 404(b) forbidding evidence relating to other wrongful
conduct by a defendant does not apply to intrinsic evidence).

       We agree with the district court that any prejudice stemming from the
reference to marijuana did not substantially outweigh the value of the testimony as
part of the res gestae of the crime. The Government’s questioning related to the
marijuana debt was brief and served to provide context for the circumstances leading
up to the assaults Robertson committed. We have similarly upheld evidence that
discussed previous wrongful conduct by defendants in order to “provide a total
picture of the charged crime.” United States v. Tyerman, 701 F.3d 552, 562 (8th Cir.
2012) (internal quotation marks omitted). Although a risk of prejudice exists when
allowing references to a defendant’s prior bad acts, see Fed. R. Evid. 404 advisory
committee notes (1972) (Note to Subdivision (a)), we do not find the district court
clearly abused its discretion by allowing this evidence given its probative value to
explain the reason for the conflict between Robertson and the Quick Bears. See
United States v. Rabins, 63 F.3d 721, 726 (8th Cir. 1995) (“We accord great
deference to the [d]istrict [c]ourt’s application of the Rule 403 balancing test . . . .”).

                                           III.

       Robertson also argues the district court should have given a limiting
instruction to the jury regarding the prosecutor’s cross-examination that established
Robertson was not permitted to possess firearms at the time of the shooting.1


      1
        A heading in Robertson’s table of contents states that he appeals the
admission of “firearm possession testimony at trial,” but his argument only discusses
the court’s improper refusal to give a limiting instruction to the jury regarding that
testimony. Because Robertson failed to support his challenge to the admission of
the firearm possession testimony with any argument, reasoning, or citation to
authority, we consider that challenge waived. See United States v. Howard, 532 F.3d
755, 760 (8th Cir. 2008).

                                           -6-
Robertson requested that the court give an instruction stating, “Simply because a
Defendant is not permitted to be in possession of a firearm does not mean he is
necessarily guilty of violating a statute prohibiting possession of a firearm if he
should come into control of the firearm for purposes of self-defense.” We review a
court’s refusal to give a defendant’s proposed instruction for an abuse of discretion.
United States v. Jewell, 614 F.3d 911, 927 (8th Cir. 2010).

       The district court rejected the requested instruction on the grounds that its
Preliminary Instruction No. 1 sufficiently instructed the jury that Robertson was on
trial only for the offenses charged in the superseding indictment. We have upheld
refusals to give requested jury instructions when, “even assuming [the] requested
instructions were accurate statements of the law . . . , the jury instructions given by
the district court correctly and adequately stated the applicable law.” Jewell, 614
F.3d at 927 (emphasis added); see United States v. Anderson, 533 F.3d 623, 632 (8th
Cir. 2008) (indicating a defendant is not entitled to a “particularly worded
instruction” so long as the instructions as a whole correctly state the law). Robertson
was not charged with unlawful possession of a firearm, making its requested
instruction irrelevant. Therefore, the district court did not abuse its discretion in
denying the requested instruction.

                                         IV.

       Finally, we address Robertson’s claim that the district court improperly
imposed three supervised release conditions at sentencing. Robertson challenges
two of the special conditions on constitutional grounds, which we would normally
review de novo. See United States v. Washington, 893 F.3d 1076, 1081 (8th Cir.
2018). But we review for plain error when a defendant fails to timely and
specifically object to such conditions at sentencing. United States v. Simons, 614
F.3d 475, 478 (8th Cir. 2010). At Robertson’s sentencing, his attorney vaguely
objected to the “sentence” under 18 U.S.C. § 3553 and the Constitution. But he did
not explicitly object to any condition of supervised release. We therefore review
Robertson’s challenges to the supervised release conditions for plain error. See


                                         -7-
Simons, 614 F.3d at 479 (holding that plain error review applied when an attorney
“presented only a general objection to the special conditions”). “To qualify for relief
under this standard, the appellant must show that the district court committed an
error that is clear under current law, that the error affects his substantial rights, and
that the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Wisecarver, 644 F.3d 764, 775 (8th Cir. 2011).

       Robertson argues that the district court improperly imposed three conditions
requiring him to: (1) submit a sample of his blood, breath, or bodily fluids at the
discretion of the probation office; (2) inform a person of a risk he poses to them, if
his probation officer determines he poses a risk to that person; and (3) refrain from
consuming alcohol or frequenting establishments whose primary business is selling
alcoholic beverages. We hold that the district court did not plainly err in imposing
the blood and risk conditions, but we find plain error with respect to the alcohol
condition.

       First, Robertson argues that both the blood and risk conditions are
unconstitutional delegations of judicial authority to a probation officer because they
allow the officer to determine whether he poses a risk to any person, order him to
notify such persons of the risk, and command the production of his bodily fluids.
We have held a special condition of supervised release is an impermissible
delegation of authority “only where the district court gives an affirmative indication
that it will not retain ultimate authority over all of the conditions of supervised
release.” United States v. Thompson, 653 F.3d 688, 693 (8th Cir. 2011) (internal
quotation marks omitted). Robertson points to nothing in the record to show the
district court disclaimed ultimate authority over Robertson’s supervision. The court
made no affirmative indication it was doing so. Thus, the risk and blood conditions
were not unconstitutional delegations of authority.

      Second, the district court did not plainly err in holding that the risk condition
was not unconstitutionally vague. We have held that a term in a supervised release
condition is “not unconstitutionally vague [when] its scope can be ascertained with


                                           -8-
sufficient ease.” United States v. Key, 832 F.3d 837, 840 (8th Cir. 2016) (quoting
Smith v. United States, 431 U.S. 291, 309 (1977)). Robertson asserts this condition
is vague because the term “risk” is undefined by statute and has wide-ranging
meanings. But the condition states that Robertson’s probation officer will determine
whether Robertson poses a risk to a particular person, and only then may he require
Robertson to notify that person of the particular risk. Thus, the “scope of this
condition can be ascertained with sufficient ease,” Key, 832 F.3d at 840, because the
probation officer will identify and communicate the risk to Robertson before
Robertson has a duty to inform another person of that risk, see United States v. Hull,
893 F.3d 1221, 1223-34 (10th Cir. 2018) (upholding a similar condition of
supervised release). Moreover, if there is genuine confusion about what the
condition requires, Robertson “may ask questions of his probation officer, who is
statutorily required to instruct [him] . . . as to the conditions specified by the
sentencing court.” United States v. Forde, 664 F.3d 1219, 1224 (8th Cir. 2012)
(internal quotation marks omitted). Although this is a close question and some
circuits have refused to uphold similar risk conditions, see United States v. Evans,
883 F.3d 1154, 1163-64 (9th Cir. 2018), the fact that this is a close question means
that the error is not plain. See United States v. Olano, 507 U.S. 725, 734 (1993)
(noting that “plain” in plain error standard is synonymous with “clear or “obvious”).

       Lastly, Robertson asserts that the supervised released condition banning him
from consuming alcohol and frequenting establishments that primarily serve alcohol
is unsupported by the record because there is no evidence that the offense involved
alcohol or that Robertson ever had problems related to alcohol. The relevant
precedent here also dictates that “a history of drug abuse can support a condition
prohibiting the consumption of alcohol” but “only where the defendant is truly drug
dependent.” United States v. Bell, 915 F.3d 574, 577 (8th Cir. 2019). “[R]epeated
[drug] use and light alcohol consumption are not necessarily sufficient to establish
dependency, which exists when a person is psychologically or physiologically
reliant on a substance.” Bell, 915 F.3d at 577 (internal quotation marks omitted).




                                         -9-
      We have also held that when there is “a complete lack of explanation for
imposition of [a] condition, the error . . . substantially affects the fairness, integrity,
or public reputation of judicial proceedings.” Wisecarver, 644 F.3d at 776.

         We find that the district court plainly erred in imposing Robertson’s alcohol
condition because the district court did not explain its basis for the condition,
Robertson’s offense did not involve alcohol, and the record does not show that
Robertson was alcohol or drug dependent. See Wisecarver, 644 F.3d at 775-76
(finding that imposition of an alcohol-related supervised release condition was plain
error when the defendant had not previously had alcohol problems and the district
court “gave no explanation . . . when it imposed the conditions”). The only mention
of alcohol in the record involved Robertson consuming alcohol on New Year’s Day
in 2017, approximately three months before the offense. In addition, although
Robertson has a history of drug convictions as recent as 2009, the district court did
not make individualized findings about his drug use. See Bell, 915 F.3d at 578.
(vacating an alcohol condition when the district court did not make individualized
findings and noting that a previous drug conviction did not show drug dependence).
Thus, due to the district court’s lack of explanation for this condition and the lack of
evidence that Robertson was drug dependent, the error “substantially affect[ed] the
fairness, integrity, or public reputation of the judicial proceedings,” and Robertson
is entitled to “plain error relief.” See Wisecarver, 644 F.3d at 776.

                                            V.

       For the foregoing reasons, we affirm the district court’s evidentiary rulings
and refusal to give the limiting instruction, as well as its imposition of the blood and
risk supervised release conditions. But we vacate the alcohol-related condition and
remand to the district court for further proceedings not inconsistent with this opinion.
                         ______________________________




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