                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4461


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CLIFTON JEROME WASHINGTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:09-cr-00105-D-1)


Argued:   October 28, 2011                 Decided:   January 6, 2012


Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Keenan and Senior Judge Hamilton concurred.


ARGUED: Robert Hood Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES,
Raleigh, North Carolina, for Appellant.     Eric David Goulian,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.   ON BRIEF:   George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

      Clifton Jerome Washington appeals his jury conviction on

one   count    of     possession           of    a       firearm         by    a     convicted       felon.

Washington     contends          that:       (1)         the    admission            of     out-of-court

statements of a confidential police informant violated his Sixth

Amendment right of confrontation; and (2) the district court

abused its discretion by finding that the probative value of the

out-of-court statements was not substantially outweighed by the

danger of unfair prejudice.                          We find no error and therefore

affirm.



                                                     I.

      Washington       was       indicted         by      a    grand          jury    in    the     Eastern

District of North Carolina on April 15, 2009 on one count of

possession of a firearm by a convicted felon in violation of 18

U.S.C. §§ 922(g)(1) and 924.

      Before trial, the Government indicated that it did not plan

to call as a witness the confidential informant who provided

information         that       led    to    the          stop       of    a        vehicle     in     which

Washington      was        a    passenger.                The       Government             informed    the

district      court    that          it    intended            to   have        Officer       Billy        Dee

Greenwood      of     the      Raleigh          Police         Department            testify        that    a

confidential informant reported to him that an individual had

fired a shot in Raleigh, North Carolina and then got into a

                                                     2
multi-colored Crown Victoria, for the purpose of explaining why

the police stopped the car.

      Washington moved in limine to prevent the admission of the

confidential        informant’s      out-of-court        statements.         Washington

argued   the      introduction        of    the     informant’s      statements      were

unnecessary, irrelevant, and unduly prejudicial.                           In addition,

Washington     maintained        that       testimony    about      the    out-of-court

statements      from      Officer         Greenwood,     rather       than    from     the

confidential         informant            himself,      would       deny      him      his

constitutional right to confront his accusers.

      The district court disagreed and specifically found that

under the Supreme Court’s decision in Crawford v. Washington,

541   U.S.     36    (2004),        the     out-of-court        statements     did     not

implicate      Washington’s         Sixth     Amendment      confrontation          rights

because the evidence would not be offered for the truth of the

matter   asserted.            The    district       court    also    found    that     the

probative      value      of     this       evidence     was      not     substantially

outweighed by any danger of unfair prejudice under Federal Rule

of    Evidence         403.           The         district      court      noted      that

contemporaneously         with      the    introduction      of     the    evidence,   it

would issue a limiting jury instruction directing the jury not

to consider the statements for the truth of the matter asserted.

According    to     the   district         court,     such   an     instruction      would

remove the danger of unfair prejudice.

                                              3
          Trial   commenced     on    January      11,     2010.      Officer      Jonathan

MCCann testified as the Government’s first witness.                                Officer

McCann testified that he went on duty on December 19, 2008 at

7:00 a.m.         Officer McCann further testified that he received a

phone call around 7:10 a.m. from Officer Greenwood advising that

there was a suspect in southeast Raleigh, who was in possession

of    a    firearm,      traveling     in    a    multi-colored        Crown      Victoria.

Officer McCann recalled that he had several conversations with

Officer Greenwood, who was talking to an informant and trying to

update Officer McCann as he arrived in the area.                         Because of the

possibility that there was a firearm in the vehicle, Officer

McCann had radioed for assistance before he spotted the vehicle.

          Officer    McCann     observed      a    multi-colored        Crown     Victoria

traveling north on East Street near Martin Luther King Boulevard

in Raleigh.         Officer McCann saw two individuals in the vehicle,

and   the     passenger       did    not    appear    to      be   wearing   a    seatbelt.

Officer McCann further testified that the Crown Victoria passed

two vehicles that were waiting to make a left turn and made a

right      turn     on   East   Davie       Street,      in    violation     of    a   North

Carolina statute prohibiting improper passing in a single lane.

Officer McCann made the same right turn, another patrol vehicle

pulled      up    behind    him,     and    then     Officer       McCann    initiated    a

traffic stop by turning on his emergency lights.



                                              4
       Officer   McCann    and    Officer       Matroo,    who     was    riding     with

Officer      McCann,    approached       the    vehicle     with       their      service

weapons drawn in the low-ready position because of the suspicion

that there could be a firearm in the car.                   Christian Diggs, the

driver of the vehicle, and Washington, the passenger, were asked

to step out of the vehicle. Following pat-down searches, neither

was found to have a weapon.           Diggs consented to a search of the

vehicle,     during     which    Officer       McCann    found     a     silver    semi-

automatic     firearm    inside    the    armrest       between    the     driver    and

passenger seats.        Because of the firearm’s position on its side

with   the    barrel    pointing   toward       the     steering       wheel,     Officer

McCann believed that the weapon had likely been placed there by

the passenger.         When Diggs and Washington were advised that a

firearm was located in the vehicle, both denied ownership of the

weapon.

       At trial, before Officer Greenwood testified, the district

court instructed the jury as follows:

            Ladies and gentlemen of the jury . . . . You have
       heard a little bit about what a confidential informant
       told to Officer Greenwood. You must not consider the
       statement relayed by that confidential informant to
       Officer Greenwood as if it were true in deciding if
       the defendant committed the acts charged in the
       indictment.
            The evidence concerning what that individual may
       or may not have said to Officer Greenwood is being
       offered for the limited purpose of explaining why
       Officer Greenwood began an investigation and then took
       steps himself during that investigation.   This is the
       sole purpose for which such evidence concerning

                                           5
      alleged statements of a confidential informant are
      being offered, and again, those statements are not
      being offered for the truth of the matter asserted.

J.A. 299-300.

      Thereafter,      Officer      Greenwood     testified     that   he    received

information from a confidential and reliable source on December

19, 2008 that there was a person who had just fired a shot and

was   in   possession     of    a    firearm.      Officer      Greenwood     further

testified that over the course of several telephone calls, the

confidential informant provided a description of the individual

and   also    stated     that       the   individual     had    gotten      into    the

passenger seat of a multi-colored older model Crown Victoria

traveling    northbound.            Officer     Greenwood      explained     that    he

received this information “as it was happening.”

      In response to Officer Greenwood’s testimony, the defense

counsel renewed the objection regarding the admission of the

confidential     informant’s         out-of-court      statements,       which      the

district     court     again    overruled.         The    district       court     did,

however, provide a second limiting jury instruction:

      [L]adies and gentlemen, you will just recall my
      limiting instructions that the testimony concerning
      what   that   confidential   informant   told  Officer
      Greenwood is not being offered for the truth of what
      that confidential informant said.   It’s being offered
      to explain what Officer Greenwood did next.

J.A. 302-03.         Thereafter, Officer Greenwood testified that he

relayed a description of the person, the vehicle, and the area


                                           6
and direction of travel of the vehicle to Officer McCann.                             When

Officer     Greenwood        arrived       at      the     scene,     he      identified

Washington.

      Officer      Greenwood      further       testified    that     both    Diggs      and

Washington were taken to the police station.                        Officer Greenwood

and Federal Bureau of Investigation Special Agent Rob Richards

advised     Washington        of     his     Miranda        rights.           Washington

nevertheless       agreed    to    speak    with    them     and    signed    a    Miranda

waiver     form.     In     summarizing      his    interview       with     Washington,

Officer     Greenwood        testified       that        after     initially       denying

knowledge of the gun, Washington gave a statement admitting that

the gun found in the Crown Victoria was his and that he had

fired that gun earlier that day to scare an individual named

“Chill Will” with whom he was having a dispute.                       Washington also

admitted that he placed the gun underneath the center console of

the Crown Victoria after the car was pulled over by the police.

      On   cross-examination,         Officer       Greenwood       recalled      that    he

had   previously      testified       at    other        hearings    about     what      the

confidential       informant       told    him     about     this    case.        Defense

counsel     questioned      Officer       Greenwood       regarding    this       previous

testimony     whether       the     confidential          informant     told       Officer

Greenwood that the informant saw the person making the shot or,

in the alternative, whether the confidential informant heard the

shot from several streets away.                     Officer Greenwood confirmed

                                            7
that it was his testimony that the confidential informant told

him that the informant had seen a person fire a gun before

getting   into    the   Crown   Victoria.      Officer   Greenwood   further

testified that the evidence from the confidential informant was

“reliable” and that the confidential informant was someone he

believed gave him “true” information.

       Defense counsel objected to the testimony, and specifically

to the characterization by Officer Greenwood that the evidence

from the informant was true.          In response, the district court

gave a third limiting instruction:

            Well, again, ladies and gentlemen of the jury,
       the court has instructed you twice that the - you have
       heard evidence of what a confidential informant told
       Officer Greenwood.   Do not consider the confidential
       informant’s statements for the truth of the matter
       asserted in deciding if the defendant committed the
       acts charged in the indictment.
            The evidence concerning what the confidential
       informant said to Officer Greenwood is being offered
       for the limited purpose of explaining why Officer
       Greenwood began an investigation and took particular
       steps during that investigation.     This is the sole
       purpose for which that evidence of the confidential
       informant is being provided and may be considered.

J.A.   332.      During   the   Government’s    re-direct   examination   of

Officer Greenwood, the district court gave the jury a fourth and

final limiting instruction:

            Again, ladies and gentlemen, I remind you of my
       instruction that I have given to you a number of
       times, that the testimony about what the confidential
       informant said is not offered for the truth of the
       matter asserted.


                                      8
            It’s   only  offered   to   explain why Officer
       Greenwood then took the investigative steps that he
       took, as I have described earlier in the limiting
       instruction I have given to you.

J.A. 348-49.

       The Government rested its case after reading a stipulation

into the record that Washington had previously been convicted of

a crime punishable by more than one year in prison.                    Washington

presented no evidence.

       During the jury charge conference, defense counsel proposed

that the reasons for the limiting instructions be explained to

the jury, in the following manner:

            The Court would consider instructing the jury
       something to the effect of the reason why [the jury]
       can’t consider this evidence as substantive evidence
       for the truth of what [the confidential informant]
       said is because the confidential informant did not
       come into court and testify and was not subject to
       cross-examination.
            Or, in the alternative, if I can bring that up in
       closing, and just say, look, just so you will know why
       you are not supposed to consider that as substantive
       evidence for the truth of the matter asserted, this
       person did not come and testify before you and I
       didn’t get a chance to cross-examine him on things
       like opportunity to observe, bias, drug use, whether
       or not he was getting paid, and some of the things we
       know from the suppression hearing.

J.A. 376.      The district court noted that the jury had already

been    instructed     and,    further,      stated   that      the   court    was

confident    that      the    jury   would     follow     the     instructions.

Additionally,    the    district     court    expressed      concern    that   an



                                       9
additional   explanatory    instruction    would    be    inappropriate    and

confusing.      An agreement was then reached:

     [Defense counsel]:   Okay.   I certainly don’t want to
     try to explain the Court’s instruction, but if I can
     say, look, you didn’t get a chance to judge this
     person’s credibility, he didn’t come into court. The
     government choose [sic] not to bring this person in
     here, and you have been instructed not to consider
     what this person said for the truth of the matter.
     That is probably enough for me.

     [The Government]:      I have no objection to that.

     The Court: Okay.      That is fine.

J.A. 377-78.

     The jury ultimately convicted Washington of one count of

possession of a firearm by a convicted felon.                  The district

court sentenced him to 120 months’ imprisonment.                 Washington

appeals. 1


                                    II.

                                     A.

     On appeal, Washington contends that by admitting out-of-

court statements made by a confidential informant to the police,

the district court violated his right to confrontation under the

Sixth Amendment of the United States Constitution.               Washington

argues   that    the   district   court   allowed   the    introduction    of


     1
        Washington also moved to file with this                    Court     a
supplemental brief; that motion is hereby granted.



                                     10
testimonial         hearsay       statements        of        a     confidential        police

informant that proved him guilty of possession of a firearm.                                  We

disagree.

        “We   review      alleged   Confrontation             Clause      violations        under

the de novo standard of review.”                    United States v. Lighty, 616

F.3d 321, 376 (4th Cir. 2010), cert. denied, 132 S. Ct. 451

(2011).         The       Confrontation       Clause          guarantees         a    criminal

defendant the right “to be confronted with the witnesses against

him.”     U.S. Const. amend. VI.                  In Crawford, the Supreme Court

held     that       the     Confrontation          Clause          bars    “admission          of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had a

prior opportunity for cross-examination.”                         541 U.S. at 53–54.

        However, the admission of non-hearsay does not implicate a

defendant’s confrontation.              See id. at 60 n.9 (“The Clause . . .

does    not   bar     the   use   of    testimonial           statements      for     purposes

other    than    establishing          the   truth       of       the   matter       asserted.”

(citing Tennessee v. Street, 471 U.S. 409, 414 (1985))); Fed. R.

Evid. 801(c) (defining an out-of-court statement as hearsay if

it is “offered in evidence to prove the truth of the matter

asserted”); see also United States v. Ayala, 601 F.3d 256, 272

(4th     Cir.    2010)       (“Crawford       is     quite          explicit         that     the

Confrontation Clause does not eliminate the use of testimonial



                                             11
statements across the board.”), cert. denied, 131 S. Ct. 262

(2010).

        As observed by the Seventh Circuit, “[t]here are no doubt

times when the testimony regarding a tip from an informant is

relevant.      If    a    jury   would     not    otherwise         understand      why   an

investigation       targeted     a   particular         defendant,         the    testimony

could    dispel     an    accusation      that    the       officers   were       officious

intermeddlers        staking      out     [the         defendant]      for        nefarious

purposes.”         United States v. Silva, 380 F.3d 1018, 1020 (7th

Cir. 2004).         As the Government argues, this is precisely the

situation     presented      here:         Officer       McCann’s      actions,       i.e.,

following the Crown Victoria, finding a legal basis to pull it

over, approaching it with his weapon drawn, removing the driver

and passenger, and obtaining permission to search the vehicle,

can   only    be    understood       in   the    context       of    the    confidential

informant’s statement that an individual that recently fired a

gun   might    be    in    the   vehicle        with    a    gun.      Therefore,         the

confidential        informant’s      out-of-court            statements      to     Officer

Greenwood were properly admitted not for the truth of the matter

asserted, but rather for the limited, permissible purpose of

explaining the investigative activity that ensued.

        We have held that such out-of-court statements that explain

or provide context for the actions of law enforcement officers

are routinely admitted as non-hearsay.                      See, e.g., United States

                                           12
v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (holding that an

agent’s testimony concerning information received from another

agent “was offered not for its truth but only to explain why the

officers    and   agents   made    the    preparations            that      they       did    in

anticipation of the appellant’s arrest.                         As such it was not

inadmissible hearsay”) (citations omitted)).

      Further, the district court gave four limiting instructions

to the jury regarding the proper use of the evidence.                                        The

district    court    repeatedly    told       the    jury       not   to    consider         the

informant’s statement to Officer Greenwood for the truth of the

matter asserted.        In the first instruction, the district court

explained    to   the   jury,    “you    must       not    consider        the    statement

relayed by the confidential informant to Officer Greenwood as if

it were true in deciding if the defendant committed the acts

charged     in    the   indictment.”            J.A.       299.            In    subsequent

instructions, jurors were reminded, “you will just recall my

limiting instructions that the testimony concerning what that

confidential      informant     told    Officer        Greenwood           is    not    being

offered for the truth of what that confidential informant said.”

J.A. 302-03.        The district court also instructed the jury that

the   evidence    was   “being    offered       for       the    limited        purpose      of

explaining why Officer Greenwood began an investigation and took

particular steps during that investigation.”                     J.A. 332.



                                         13
     In light of the legitimate rationale for admitting the out-

of-court statements, as well as the limiting instructions, the

district court did not err in allowing the statements, which did

not implicate the Confrontation Clause, into evidence.



                                           B.

     With   his     second        argument,     Washington       asserts    that   the

district    court    abused        its    discretion      in    finding    that    the

probative    value     of     the        out-of-court      statements       was    not

substantially     outweighed        by    the   danger    of     unfair    prejudice.

Washington contends that, even assuming arguendo that the out-

of-court    statements       of    the    confidential         informant   were    not

hearsay, the district court abused its discretion in failing to

exclude them under Federal Rules of Evidence 401 and 403.                           We

disagree.

     A district court’s admission of evidence is reviewed for

abuse of discretion.          United States v. Perkins, 470 F.3d 150,

155 (4th Cir. 2006).              Such discretion is abused only when a

“district   court    act[s]        arbitrarily    or     irrationally.”        United

States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994) (internal

quotation marks and citation omitted).

     Rule 401 provides for the admission of relevant evidence,

i.e., “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action

                                           14
more probable or less probable than it would be without the

evidence.”       Fed. R. Evid. 401.             Therefore, evidence is relevant

if   it   is    “worth    consideration          by   the   jury”    or   has    a    “plus

value.”        United States v. Queen, 132 F.3d 991, 998 (4th Cir.

1997) (internal quotation marks and quotation omitted).                              “As we

have often observed, relevance typically presents a low barrier

to admissibility.”           United States v. Leftenant, 341 F.3d 338,

346 (4th Cir. 2003) (citation omitted).

      Under     Rule      403,   otherwise        admissible       evidence      “may    be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice.”                  Fed. R. Evid. 403.            “Rule 403

only requires suppression of evidence that results in unfair

prejudice—prejudice that damages an opponent for reasons other

than its probative value, for instance, an appeal to emotion,

and only when that unfair prejudice substantially outweighs the

probative value of the evidence.”                     United States v. Mohr, 318

F.3d 613, 619–20 (4th Cir. 2003) (internal quotation marks and

citation omitted).          “[I]n reviewing the trial court’s decision,

we   ‘look     at   the   evidence     in   a     light     most    favorable     to    its

proponent,      maximizing       its   probative       value   and    minimizing        its

prejudicial effect.’”            United States v. Simpson, 910 F.2d 154,

157 (4th Cir. 1990) (quoting Mullen v. Princess Anne Volunteer

Fire Co., Inc., 853 F.2d 1130, 1135 (4th Cir. 1988)).



                                            15
      Here,    the    confidential          informant’s      statements        to   Officer

Greenwood     were        not    only   relevant;        they       provided    a    proper

understanding        of    the     officers’      investigative         actions.          The

information reported by the informant that an individual had

fired a gun and then gotten into a multi-colored Crown Victoria

was particularly relevant in light of the presence of the back-

up officers, the officers’ display of their weapons, the removal

of   the   occupants        from    the     vehicle,     and     the    search      of    the

vehicle.

      Further, the danger of “unfair prejudice” was minimal.                              The

district      court       instructed        the   jury      four      times     that     the

informant’s      statements        were     not   to   be    considered        for     their

truth, but only to explain the officers’ actions.                           Additionally,

because    the   jury       also    heard     Officer       Greenwood       testify      that

Washington admitted to possessing and firing the gun, the out-

of-court      statements           likely     had      no       appreciable         impact.

Accordingly, the district court acted well within its discretion

in   finding     that       the     probative       value      of     the   out-of-court

statements was not substantially outweighed by any danger of

unfair prejudice.




                                             16
                            III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




                             17
