                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       January 26, 2010
                                                                     Elisabeth A. Shumaker
                         UNITED STATES COURT OF APPEALS                  Clerk of Court

                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA.

           Plaintiff-Appellee,
                                                              No. 08-5130
                                                         N. Dist. of Oklahoma
 v.
                                                    D.C. No. 4:08-CR-00044-TCK-1
 GIANNI MONTAY MINNERS,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before BRISCOE, HOLLOWAY, and HOLMES, Circuit Judges



       Defendant-Appellant Gianni Minners was convicted of violating 18 U.S.C. §

922(g)(1) and § 924(a)(2), for being a convicted felon in possession of a firearm and

ammunition. Mr. Minners raises three issues on appeal: (1) the admission of a 911 phone

call recording; (2) the admission of a post-arrest video of Mr. Minners; and (3) the

District Court’s failure to give the jury limiting instructions regarding this evidence. We

conclude that the District Court did commit certain errors in admitting the evidence.

However, even so, because of the overwhelming weight of the government’s evidence,


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
any error was harmless. Thus, the convictions are AFFIRMED.

I. BACKGROUND

       On the evening of January 19, 2008, Jameece Whaley called 911 after allegedly

being assaulted by Mr. Minners. She began the call by reporting to the operator in a calm

voice that she wanted to “make a report” because her ex-boyfriend had broken the

windows in her car the night before and had just “busted down” her door and assaulted

her with a gun. Supp. R., Audio Recording of 1/19/08. The assault had occurred fifteen

minutes prior and Ms. Whaley had been unable to call 911 earlier because every time she

had tried, Mr. Minners had taken the phone from her or threatened her with the gun. Id.

       She indicated she had left her apartment and was making the call from her cousin’s

apartment. Id. She did not know Mr. Minners’s current location, only that he had

“walked away.” Id. She gave the operator the address of her current location but asked

that the officers not park in front of the building because Mr. Minners knew the location.

Id. When asked if she needed emergency medical assistance, Ms. Whaley answered she

did not and she just wanted to make a report. Id.

       Officer Todd Taylor of the Tulsa Police Department responded to the domestic

disturbance with a gun call. He met Ms. Whaley at a location other than where the

altercation had occurred and she appeared to have been assaulted. Her shirt was torn and

her nose, breast, and knee were scraped. Ms. Whaley informed Officer Taylor that Mr.

Minners had assaulted her and was carrying a firearm.

       Officer Taylor called for assistance and proceeded to a quadplex (an apartment

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complex with four units: two upstairs and two downstairs) where Mr. Minners allegedly

resided. Along with Officers Lance Eberle, Anthony First, Jason Edwards, Liz

Weatherly, and Detective Don Wright, Officer Taylor entered the quadplex on the ground

floor. Standing at the bottom of the dark and unlit central staircase, the officers heard

three individuals coming down the stairs. Once the individuals rounded the landing

between the two floors, the officers turned on their flashlights, identified themselves as

police, and ordered the three to stop. Instead of obeying, the three turned and ran up the

stairs. The officers followed.

       When the officers turned on their flashlights they saw that the three men were all

wearing “hoodies,” which are hooded sweatshirts. The man who was nearest the bottom

of the stairs wore a dark blue or black hoodie and a skull cap. That man was recognized

by some of the officers as Mr. Minners. The other two men were wearing light-colored

hoodies. When the officers announced their presence and ordered the men to show their

hands, Officer First saw Mr. Minners disobey and shove his hands toward the waistband

in the front of his pants. This alarmed Officer First because that is typically where people

keep weapons.

       As the men ran back up the stairs, the officers witnessed Mr. Minners make a

throwing motion with his right arm as he neared the second story window at the top of the

staircase. Officers heard the sound of breaking glass and continued to pursue the men up

the stairs. Subsequently, they arrested the suspects. As soon as the men had begun

running up the stairs, Officer Eberle ran outside where he could keep an eye on the

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second story window – the only other exit. He saw a man wearing a dark hoodie make a

throwing motion toward the window. Officer Eberle heard glass shatter. He saw a “shiny

object” fly out of the window and land about two feet from him on the ground below. R.,

Vol. II, at 119. This shiny object was a loaded revolver. There had not been any guns

lying on the ground outside the building just a few minutes earlier when the officers

entered the quadplex.

       Mr. Minners was arrested and brought to the Tulsa Police Department’s Uniform

Division Southwest for booking. As the officers processed the evidence they discussed

among themselves, but in the presence of Mr. Minners, the make of the gun. Mr. Minners

spontaneously interjected into the conversation that “it was a Taurus,” he had the gun “for

protection,” and Ms. Whaley would recognize the gun “not because he assaulted her with

it; because she had seen him carry it in the past and she knew what kind of gun he

carried.” R., Vol. II, at 122-23.

       Shortly after Mr. Minners was arrested, he was interviewed by Corporal Nathan

Schilling. The twenty-three minute interaction was recorded. Supp. R., Video

Recording on 1/20/08. At the start of the interview Corporal Schilling read Mr. Minners

his Miranda rights. Id. Mr. Minners refused to waive them and answer questions without

his attorney being present. Id. As Corporal Schilling was getting ready to leave the

room, Mr. Minners struck up a conversation with him. Id.

       The topics of conversation were varied and changed rapidly. The tone of the

conversation was calm but filled with expletives. Mr. Minners discussed his relationship

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with his girlfriend, Ms. Whaley: her miscarriage, how she was controlling, that he had

cheated on her, how her friends were liars, that he did not assault her, and that he loved

her. Id. Mr. Minners revealed that their altercation stemmed from Ms. Whaley’s

discovery that Mr. Minners had impregnated one of the other two girls he was seeing. He

lamented that he was homeless, that he had plans to attend church the next day, and was

hoping to turn his life around and get a job through a church program. Id.

       Mr. Minners also revealed he had just spent nine years in prison for his

involvement with drugs and for possession of a firearm. Since his release in May a few

months earlier, he had only been employed for a period of one and one-half days before

he was “let go.” Id. When asked about the gun, he explained he had either won the gun

in a dice game or purchased it with his winnings from a dice game. Id. He had only

owned the gun for three days and had purchased it to protect himself from Ms. Whaley’s

“crew.” Id. He claimed he had been threatened and shot at by Ms. Whaley’s friends

and/or family in the past and he wanted protection. Id. Mr. Minners explained he had

shown Ms. Whaley the gun in order to scare off her crew and make it clear that he had

protection. Id. He repeatedly asserted he did not assault Ms. Whaley but did not deny

possession of the gun. Id. However, according to Mr. Yerton of the Tulsa Police

Department, it was his opinion that none of the partial latent fingerprints that he

developed belonged to the known fingerprints that had the name of Mr. Minners

associated with them. R., Vol. II, at 204.

       During Mr. Minners’s two day jury trial, the District Court admitted evidence of

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the entirety of both Ms. Whaley’s 911 call reporting the domestic disturbance and the

twenty-three minute post-arrest video of Mr. Minners. The court did not give the jury any

cautionary instructions as to how to consider either recording. The jury convicted Mr.

Minners of violating 18 U.S.C. § 922(g)(1) and § 924(a)(2), for being a convicted felon in

possession of a firearm and ammunition. Mr. Minners filed an appeal.

II. DISCUSSION

       The District Court had jurisdiction because Mr. Minners was charged with a

federal offense. 18 U.S.C. § 3231. This court has jurisdiction over the appeal of the

judgment pursuant to 28 U.S.C. § 1291.

                              A. Admission of the 911 Call

       Mr. Minners appeals the admission of the 911 recording on both evidentiary and

constitutional grounds. Even if the District Court did abuse its discretion by admitting the

tape, and its admission violated Mr. Minners’s Sixth Amendment right to confront

witnesses testifying against him, any error would have been harmless beyond a

reasonable doubt and thus the convictions are affirmed.

1. Whether the District Court abused its discretion by admitting the 911 recording

              We review the district court's admission of evidence for an
              abuse of discretion. United States v. Mares, 441 F.3d 1152,
              1156 (10th Cir. 2006). We cannot reverse a district court's
              ruling if “it falls within the bounds of permissible choice in
              the circumstances and is not arbitrary, capricious or
              whimsical.” Id. (internal quotation marks omitted).

United States v. Smith, 534 F.3d 1211, 1218 (10th Cir. 2008). Mr. Minners asserts the


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District Court abused its discretion by admitting the recording: (1) because the ruling was

made without previewing it and performing a Federal Rule of Evidence 403 prejudicial

versus probative value balancing test; (2) because the recording was both inadmissible

prior bad acts evidence and hearsay evidence offered for the truth and not to give context

to the investigation; and (3) because the tape’s admission prejudiced Mr. Minners’s right

to a fair trial. We find that even if the District Court abused its discretion by admitting

the tape in violation of the Federal Rules of Evidence, the error was harmless.

       First, Mr. Minners’s assertions that the District Court admitted the tape without

previously viewing it or conducting a 403 balancing test regarding the prejudicial nature

of the tape are without support. There is no evidence in the record that the court either

did or did not preview the recording. However, even if the court permitted playing the

tape to the jury without previewing it, the tape’s prejudicial value did not substantially

outweigh its probative value, as prohibited by Rule 403. The recording was not likely to

“provoke[] an emotional response in the jury or otherwise tend[] to affect adversely the

jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or

innocence of the crime charged.” Id. at 1218-19 (quoting United States v. Portillo-

Quezada, 469 F.3d 1345, 1353 (10th Cir. 2006)). Ms. Whaley related that she had been

assaulted with a weapon and Mr. Minners was the man who had done so. The call’s

prejudicial value did not substantially outweigh its probative value of Mr. Minners’s

possession of the gun as prohibited by Rule 403. Therefore, the District Court did not

abuse its discretion.

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       Second, Mr. Minners argues the call was inadmissible to provide context or

explanation for the investigation because Officer Taylor had already testified he was

responding to a domestic violence call. He asserts the 911 recording was inadmissible

both because it was evidence of his prior bad acts but also because it was offered not for

the purpose of providing context for the investigation but for the truth of the matter.

       The tape tended to prove Mr. Minners committed other bad acts such as breaking

the windows of Ms. Whaley’s car the previous evening. Because the domestic violence

call was what started the investigation, the general details of the event are “inextricably

intertwined” with the charged offense and “formed an ‘integral and natural part of [Ms.

Whaley’s] accounts of the circumstances surrounding the offense[].’” United States v.

Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994) (quoting United States v. Costa, 691 F.2d

1358, 1361 (11th Cir. 1982)). Thus, the evidence concerning Mr. Minners’s alleged prior

bad acts discussed in the 911 call was admissible.

       The alleged prior bad acts listed in the tape were only mentioned once without any

additional emphasis or explanation. The prejudicial effect of these allegations was

minimal and did not outweigh their probative value. Additionally, the “familiar, standard

rule [is] that the prosecution is entitled to prove its case by evidence of its own choice”

and is not bound by the defendant’s preferred method of presenting the evidence. Old

Chief v. United States, 519 U.S. 172, 186-87 (1996) (citing Parr v. United States, 255

F.2d 86, 88 (5th Cir. 1958)). The fact that the same evidence could have been presented

in a different and less prejudicial manner does not presumptively make the way in which

                                             -8-
it was presented an error. See id. The decision to admit the entirety of the tape was a

“permissible choice” for the District Court and not an abuse of discretion in this respect.

       However, it was error for the District Court to admit the 911 call since it was

hearsay evidence offered to prove the truth of the matter asserted (possession of the gun

by Mr. Minners). “Out-of-court statements can be admitted as background for an

investigation only if they provide information that is necessary to explain the

government’s subsequent actions, and it is not likely that the jury will ‘consider the

statement[s] for the truth of what was stated with significant resultant prejudice.’” United

States v. Hinson, 585 F.3d 1328, 1336 (10th Cir. 2009) (quoting United States v. Cass,

127 F.3d 1218, 1223-24 (10th Cir. 1997) (citations and quotations omitted)). Here, the

government claimed it offered the 911 recording not for the truth of the matter asserted

but instead to give context to the investigation. However, “[w]here the government

introduces evidence that bears on the ultimate issue in the case but that is not necessary to

explain the background of a police investigation, the only reasonable conclusion we can

reach is that the evidence was offered, not as background, but as support for the

government’s case against the defendant.” Id., at 1337.

       Since Officer Taylor had already explained the nature of the 911 call that triggered

his particular investigation, it appears the call was actually offered for no other purpose

than to prove the ultimate issue: that Mr. Minners was in possession of a firearm.

Although the District Court committed error by admitting the evidence in this respect,

given the overwhelming weight of the government’s case against Mr. Minners, any error

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would have been harmless. As noted, several officers saw Mr. Minners in possession of

the gun, it was observed that he threw the gun through the window and it was

subsequently found on the ground, Mr. Minners expressed knowledge of the make of the

gun, why he had it, and admitted to possession of the gun in his post-arrest interview.

          Third, Mr. Minners alleges the admission of the tape prejudiced his right to a fair

trial because no cautionary instructions were read to the jury regarding the limited use of

the 911 call. However, in view of the overwhelming evidence of Mr. Minners’s guilt, any

error in failing to give the cautionary instructions here was harmless and did not prejudice

his right to a fair trial.

          2. Whether the 911 recording’s admission violated Mr. Minners’s right to confront

          Pursuant to Crawford v. Washington, a defendant’s Sixth Amendment

Confrontation right, according to the Framers, bars the “admission of testimonial

statements of a witness who did not appear at trial unless he was unavailable to testify,

and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 36, 53-54

(2004). In this case, the recording of Ms. Whaley’s 911 call was admitted against Mr.

Minners and Ms. Whaley did not testify. Therefore, if the call was testimonial hearsay,

then Mr. Minners had a constitutional right to cross-examine the speaker, Ms. Whaley.

See id.

          Generally, this court reviews a District Court’s decision to admit evidence under

an abuse of discretion standard. United States v. Schene, 543 F.3d 627, 640 (10th Cir.

2008). However, when the evidence implicates the Confrontation Clause, the standard of

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review is de novo. United States v. Townley, 472 F.3d 1267, 1271 (10th Cir. 2007). If

this court finds the District Court violated Mr. Minners’s right to confront his accuser,

which standard for reversal should be used turns on the question of issue preservation. If

Mr. Minners preserved his constitutional objection, the government would bear the

burden to prove the error was “harmless beyond a reasonable doubt.” See United States

v. Ledford, 443 F.3d 702, 707 (10th Cir. 2005) (citing United States v. Jefferson, 925 F.2d

1242, 1253-54 (10th Cir. 1991) (explaining that a hearsay error alleged on the basis of the

Federal Rules of Evidence alone is reviewed for “harmless error” and a hearsay error

alleged under the Confrontation Clause is reviewed under Chapman’s “harmless beyond a

reasonable doubt” standard)). If Mr. Minners failed to preserve his objection, then he has

the burden to prove the District Court committed a plain error which “(1) was obvious,

and (2) affected [his] substantial rights.” United States v. Solomon, 399 F.3d 1231, 1238

(10th Cir. 2005) (citing United States v. Perez, 989 F.2d 1574, 1582 (10th Cir. 1993 (en

banc)).

       There is some debate as to whether Mr. Minners properly preserved his

Confrontation Clause objection. Mr. Minners’s counsel did not explicitly state that his

client’s Sixth Amendment right to confront was being violated by the admission of

testimonial evidence. However, Mr. Minners’s counsel did object and make at least one

reference to his inability to cross-examine the witness when the government sought to

play the 911 recording to the jury. R., Vol. II, at 87. The government responded by

saying the phone call was not considered testimonial under the definition explained in

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Davis v. Washington, 547 U.S. 813, 822 (2006) (defining the parameters of the term

“testimonial hearsay”). The evidence was admitted. R., Vol. II, at 88-89. It was clear

from the context of the objection and the ensuing sidebar that both parties and the court

understood there was a constitutional objection being asserted. Thus, the standard for

reversal places the burden squarely on the government to prove any error was harmless

beyond a reasonable doubt. Ledford, 443 F.3d at 707.

       We accept the actions of Mr. Minners’s counsel as adequate to preserve his

Confrontation Clause argument. Assuming arguendo that it was constitutional error for

the 911 tape to have been played to the jury, the admission is reviewed for whether it was

harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967)

(“[B]efore a federal constitutional error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable doubt.”); United States v.

Summers, 414 F.3d 1287, 1303 (10th Cir. 2005). There was testimony by several officers

that they saw Mr. Minners throw the gun. Mr. Minners’s own statements were in

evidence confirming that he possessed the gun, including the videotape where Mr.

Minners admitted that he possessed the gun. This strong evidence against Mr. Minners

reduced the admission of the 911 call to limited importance and made any error harmless

beyond a reasonable doubt.

                              B. The Post-Arrest Videotape

       At trial, Mr. Minners informed the court he had no objection to playing the entire

post-arrest video to the jury. R. Vol. II, at 214. Therefore, the standard of review on

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appeal is for plain error. United States v. Winder, 557 F.3d 1129, 1136 (10th Cir. 2009).

              Consequently, to obtain relief, Mr. Garza must show “(1) [an]
              error, (2) that is plain, and (3) that affects substantial rights.
              If all three conditions are met, [this] court may then exercise
              its discretion to notice [the] forfeited error, but only if (4) the
              error seriously affects the fairness, integrity, or public
              reputation of judicial proceedings.” United States v. Garza,
              566 F.3d 1194, 1200 (10th Cir. 2009) (quoting United States
              v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000)).

       On appeal, Mr. Minners now asserts that the District Court committed plain error

because (1) the majority of the video was irrelevant and (2) the irrelevant, uncharged

prior bad acts Mr. Minners admitted committing prejudiced his right to a fair trial and

were improper character evidence. Although most of the twenty-three minute video was

irrelevant and should have been redacted, due to the overwhelming evidence of Mr.

Minners’s guilt, the error did not seriously affect the proceeding and does not require

reversal.

       Federal Rule of Evidence 801(d)(2)(A) exempts from the definition of hearsay any

statement made by a party that is offered against that party. All of Mr. Minners’s

statements captured on the video were offered against him in court and would therefore

have been exempted from the definition of hearsay as an admission by a party opponent.

Although the statements passed the hearsay hurdle, in order to be admitted at trial,

Federal Rule of Evidence 402 would nonetheless apply: the statements must be relevant

and make the existence of a fact of consequence to the action more or less probable than

it would have been otherwise. Whether Mr. Minners was intending to get a job, go to


                                             - 13 -
church, or was homeless did not make it more or less likely that he possessed a gun.

Therefore, many of Mr. Minners’s statements were irrelevant and should not have been

presented to the jury.

       Federal Rule of Evidence 404(b) prevents the admission of character evidence

against a defendant unless it is offered to prove some independent fact such as motive or

intent. This presents an additional issue for the admissibility of portions of the tape.

United States v. Oberle, 136 F.3d 1414, 1418 (10th Cir. 1998) (“Although the statements

are party admissions under Rule 801(d) and thus not hearsay, they must nevertheless also

be analyzed for admissibility under Rule 404(b) because they reveal or suggest prior

criminal conduct.”) While the discussion of why Mr. Minners had the weapon may have

been relevant, the facts that he had just been released from prison for possession of a gun

and had been unfaithful to his girlfriend were not. The District Court erred by not

redacting the video to play only the relevant portions.

       The error of not redacting the irrelevant and prejudicial parts of the post-arrest

videotape was not of substantial effect. The testimony of several officers seeing Mr.

Minners’s possession of the gun and throwing it out the window, and Mr. Minners’s

admission he had had the gun for some three days amounted to serious proof against Mr.

Minners. His rights were not substantially affected and this claim of error is rejected.

                              C. Cautionary Jury Instructions

       The District Court did not give the jury any cautionary instructions as to either the

evidence of the 911 call recording or the prior bad acts Mr. Minners admitted to

                                            - 14 -
committing in the post-arrest video.

       Mr. Minners failed to request any cautionary instructions as to the 911 call. This

court considers the party’s failure to request cautionary instruction and the court’s failure

to administer such instruction sua sponte for plain error. United States v. Gomez, 67 F.3d

1515, 1527, n.15 (10th Cir. 1995). Therefore, the failure to give cautionary instructions

results in a reversal only when the defendant’s rights were substantially affected. Id.

Given the extensive proper evidence presented by the government, Mr. Minners’s rights

were not substantially affected.

       At the jury instructions conference, Mr. Minners’s counsel declared he was

reconsidering his request for a prior bad acts instruction and informed the court he no

longer wanted the instruction. R., Vol. II, at 226. Waiver is “the intentional

relinquishment or abandonment of a known right,” and when Mr. Minners’s counsel

considered and then declared he did not want the instruction, he waived the issue on

appeal. See United States v. Zubia-Torres, 550 F.3d 1202, 1204-05 (10th Cir. 2008).

Since the issue was waived, we cannot consider it here. Id.

III. CONCLUSION

       The District Court committed harmless error when it admitted the 911 call in order

to explain the officers’ further actions. The court also erred by playing the entire twenty-

three minute post-arrest video of Mr. Minners before the jury, but this error did not affect

his substantial rights and his convictions should not be reversed for this reason. Finally,




                                            - 15 -
the failure to give cautionary instructions did not affect the trial in a manner that would

constitute plain error. Therefore, we AFFIRM.

                                                          Entered for the Court

                                                          William J. Holloway, Jr.
                                                          Circuit Judge




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