                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JUN 24 2004
                                       TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                         No. 03-6282
          v.                                               (W.D. Oklahoma)
 MICHAEL HUDSON,                                        (D.C. No. 03-CR-96-R)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.


      Michael Hudson appeals his conviction following a jury trial on one count of

harboring a fugitive, in violation of 18 U.S.C. § 1071. We affirm.

                                         Background

      Pursuant to a felony arrest warrant1 which was issued for Charlotte Popejoy in

December 2002, but was sealed until April 8, 2003, Deputy United States Marshal

Charles McNeil and other law enforcement authorities began searching for Popejoy in the


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      1
       The warrant was for being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).
Oklahoma City area. On that day, April 8, McNeil went to Popejoy’s father’s house and

told her father, Bill Meredith, and brother, Bobby Meredith, that there was a warrant for

her arrest. Bill Meredith said he would tell Popejoy about the warrant, and McNeil gave

Bill Meredith his (McNeil’s) pager and cell phone numbers.

       On April 9, McNeil visited a friend of Popejoy’s, who told McNeil she had just

left with Ronnie Ek and Popejoy’s son, Justin. The friend gave McNeil Popejoy’s cell

phone number. Shortly thereafter, Popejoy called McNeil and said her father had told her

about the warrant. McNeil confirmed there was a warrant for her arrest, and Popejoy

agreed to surrender at the Oklahoma County Jail at 3 p.m. that day. Popejoy failed to do

so and did not answer her cell phone when McNeil attempted to contact her. Popejoy and

her boyfriend, Glen Holder, testified that, instead of surrendering, Popejoy was picked up

by Holder and they spent the night at a friend’s house in Choctaw. Holder was aware of

Popejoy’s warrant both because she told him and because United States Marshals had

visited Holder’s grandmother the day before in an effort to locate Popejoy.

       The following morning, April 10, Popejoy again called McNeil and promised to

surrender. McNeil reiterated to her the existence of the warrant. Popejoy again failed to

appear and surrender. That same day, shortly after the conversation between Popejoy and

McNeil, McNeil learned through an informant that Popejoy was at an address in

Oklahoma City and she was driving a black Ford Escort. Occupants at that address told

McNeil that Popejoy had just left to find Dino Dibbler. Law enforcement personnel


                                             2
searched for Dibbler, who was subsequently arrested when they found a firearm and a

methamphetamine lab in his car. He told authorities that he had spent the day with

Popejoy, but that he did not know where she went after she left. As it turned out, she and

Holder went that evening to Del City. McNeil and others went to an address in Moore,

Oklahoma, based on information that Ek might be there. They found Ek at the residence,

as well as a methamphetamine lab, but were unable to locate Popejoy. Meanwhile,

Holder had decided to cooperate with authorities.

       On April 11, authorities spent the day searching for Popejoy at motels around the

Oklahoma City area. That evening, Popejoy was with Holder when Holder was arrested

by the Choctaw police for driving with a suspended license. Holder testified that he was

trying to take Popejoy to a location where he could call the authorities and have her

arrested. When the arresting officer ran a warrant check on Popejoy through the National

Crime Information Center (NCIC), no warrants appeared and she was not arrested.2

Popejoy testified that she spent that night, following Holder’s arrest, with her niece in

Norman, Oklahoma. Popejoy also testified that she called Hudson, whom she had known

for six or seven years and with whom she had a sexual relationship for part of that time,

late that night and told him that Holder had been arrested but she had not been, even

though she had been told previously that there was a warrant out for her arrest. Sandra



       Because of a clerical error, Popejoy’s warrant had not been entered into the NCIC
       2

database. Once McNeil realized this error had occurred, he took steps to ensure that
Popejoy’s warrant was entered into that database.

                                              3
Goad, who lived in the same house as Hudson, testified that Hudson had not come home

the night of April 11, and when he returned to the house the next morning, he told Goad

that he had spent the night with Popejoy at a motel because she was a fugitive and federal

authorities were looking for her.

       Popejoy testified that she had not gotten together with Hudson until Saturday

night, April 12, although she testified that she began borrowing his car, a black Ford

Escort, perhaps as early as Friday, the 11th. Holder testified he saw her driving Hudson’s

car before he was arrested on the night of April 11. Popejoy testified that she spent

Saturday night and/or Sunday night in Hudson’s room in the house he shared with Goad

and one other person. She drove Hudson to work on Saturday and Monday.

       On Monday, April 14, authorities checked hotels during the day and Popejoy spoke

again with Deputy McNeil, asking him why no warrant had appeared when her name was

run through the NCIC database on Friday night. McNeil explained the clerical error, and

he verified that there was, in fact, a warrant out for her arrest. That same day, after

Holder had been released on bond, he rejoined Popejoy and they went to a motel, where

they were joined in the evening by Hudson and Meredith. At one point, Popejoy and

Meredith left the motel briefly and, while driving in Hudson’s Ford Escort, Popejoy fell

out of the car and injured herself. Hudson and Meredith helped bandage her injuries once

she returned to the motel. Hudson and Meredith then had an altercation with Holder,

accusing him of trying to help the authorities find Popejoy and threatening him if he did


                                              4
so.3

       The next day, April 15, Holder and Popejoy had a fight, so Holder dropped

Popejoy at her mother’s house. Popejoy testified that Hudson picked her up from her

mother’s house and took her to his house. In the evening of that day (April 15), Holder

told McNeil that Popejoy was staying at Hudson’s house. McNeil, accompanied by

Holder and one of Holder’s friends, drove to Hudson’s house in McNeil’s Jeep Cherokee,

and began to conduct surveillance from a church parking lot approximately one block

away. They saw two individuals, who turned out to be Meredith and Hudson, leave

Hudson’s house together in Hudson’s black Ford Escort. McNeil testified that Popejoy

told him that, before Meredith and Hudson left the house, she had told them “that she felt

like the marshals were closing in on her and that they needed to get out of the residence

so that they weren’t there when she was arrested.” ROA, Vol. 2 at 101. She then “stated

that [Meredith and Hudson] left the bedroom and padlocked the door.” Id. Popejoy’s

testimony at trial basically corroborated this.

       Hudson and Meredith spotted the Jeep Cherokee parked in the church parking lot,

which Hudson testified seemed suspicious. They therefore drove up close to the Jeep to

let the occupants know they had been seen. McNeil testified that the encounter between

the Jeep and the Escort seemed threatening, stating “I had my hand on my gun. I mean, I



       3
         There was some confusion in the testimony of the various witnesses as to whether
this incident at the motel happened Sunday night or Monday night.

                                                  5
thought we were fixing to have a shoot-out and I’m sure it seemed a lot longer than it . . .

actually was.” Id. at 205. McNeil also testified that Meredith had encountered McNeil

once before when McNeil was driving the Jeep. McNeil stated that he could clearly see

Meredith in the passenger seat. On the stand, he identified the driver as Hudson, whom

he had not previously met.

       McNeil called for backup and the Escort departed, although it did not return

directly to Hudson’s house. When McNeil appeared at Hudson’s house after dropping

Holder and his companion, Hudson and Meredith, who had circled back to Hudson’s

house in the Escort, were being placed in the back of cruisers by other officers. McNeil

opened the back door of the police car in which Hudson had been placed and asked him if

he knew where Popejoy was. McNeil testified that he responded that he “d[id]n’t even

know Charlotte Popejoy,” id. at 207, while Hudson testified he stated that he did not

know “where Charlotte’s at.” ROA, Vol. 3 at 352.

       Officers then entered Hudson’s house without a warrant and found Sandra Goad

on the couch with another female. When asked where Popejoy was, Goad replied that she

was not there and had already left. The agents forced entry into Hudson’s locked

bedroom and found Popejoy hiding in his closet under a pile of clothes. Officers obtained

a state warrant to continue searching the house. They found a note on the bed in

Hudson’s bedroom on which was written “Federal charges, Charlotte Popejoy.” Id. at

353.


                                              6
       Hudson testified in his defense, disagreeing with much of what other witnesses had

stated. He denied knowing about the arrest warrant and, while he conceded that Popejoy

had driven his car on occasion beginning on April 10, he essentially denied that she had

spent very much time with him during the period she was evading arrest or that she stayed

for any extended periods of time at his house. He also testified that, on the evening of her

arrest, she had left his house before he and Meredith had the encounter with McNeil in his

jeep, and he did not know how she ended up in his closet.

       Following a jury trial, Hudson was convicted on one count of harboring a fugitive,

in violation of 18 U.S.C. § 1071. He appeals, arguing (1) the evidence is insufficient to

support his conviction; (2) his statement to McNeil concerning the whereabouts of

Popejoy was made prior to his receipt of a Miranda warning and therefore violated his

Fifth Amendment right against self-incrimination; (3) the warrantless search of Hudson’s

house and bedroom violated the Fourth Amendment and compels suppression of all

evidence found pursuant to the search; and (4) evidence of other crimes was improperly

admitted and severely prejudiced him.

                                Sufficiency of the Evidence

       18 U.S.C. § 1071 prohibits “harbor[ing] or conceal[ing] any person for whose

arrest a warrant or process has been issued . . . so as to prevent his discovery and arrest,

after notice or knowledge of the fact that a warrant or process has been issued for the

apprehension of such person.” It requires proof of four elements: “First, proof that a


                                              7
federal warrant had been issued for the fugitive’s arrest. Second, that the Appellant had

knowledge that a warrant had been issued. . . . Third, that the Appellant actually harbored

or concealed [the fugitive]. Finally, that Appellant intended to prevent [the fugitive’s]

discovery or arrest.” United States v. Hill, 279 F.3d 731, 737-38 (9th Cir. 2002) (further

quotation omitted). “The first element of the substantive offense, knowledge of the

warrant, may be proven by either direct evidence or inference.” United States v.

Lockhart, 956 F.2d 1418, 1423 (7th Cir. 1992); see also United States v. Silva, 745 F.2d

840, 848 (4th Cir. 1984) (“[I]t is well established that the government may prove

knowledge of a warrant by inference.”).

       “We review the record de novo when reviewing . . . the sufficiency of the evidence

to support a conviction.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir.

2004). We determine whether “viewing the evidence in the light most favorable to the

government, any rational trier of fact could have found the defendant guilty of the crime

beyond a reasonable doubt.” Id. (further quotation omitted). We do not evaluate the

credibility of witnesses nor do we weigh conflicting evidence. Id.; see also Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (“This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.”).

       Hudson argues the evidence failed to prove beyond a reasonable doubt that (a) he

knew that a warrant existed for Popejoy’s arrest, and (b) even if he knew about the


                                               8
existence of a warrant, that he intended to conceal Popejoy rather than assist her in

preparing to surrender.

       Hudson argues that, during the week period prior to her arrest, Popejoy spent time

with various acquaintances at various locations, but she did not stay with, or spend

substantial time with, Hudson. During that time, Hudson avers that, when Popejoy was

with him, she never communicated to him that there was a warrant for her arrest.

       We have carefully reviewed the record in this case, and conclude there was

sufficient evidence from which a rational jury could find that Hudson was aware there

was a federal arrest warrant for Popejoy. Deputy McNeil testified that Popejoy had told

him a number of times “that she told Mr. Hudson that she was wanted as early as April

the 9th.” ROA, Vol. 2 at 99. Popejoy testified that she told Hudson on “the 12th through

the 13th” that she was wanted by the government. Id. at 117. Goad’s testimony

corroborated that. Holder testified that, by the 14th, everyone knew there was a federal

arrest warrant for Popejoy. While Hudson would have us find none of this testimony

credible, it is well established that in reviewing the sufficiency of evidence supporting a

jury verdict, we do not evaluate the credibility of witnesses nor reweigh the evidence.

       We similarly conclude there was sufficient evidence supporting the jury’s

conclusion that Hudson’s intent was to conceal Popejoy, not merely to assist her in

turning herself in. Despite his awareness of the existence of the warrant, there was

testimony that Hudson permitted Popejoy to stay for periods of time in his bedroom and


                                              9
house. He also permitted Popejoy to use his car on several occasions.4 There was also

testimony that he threatened Holder when he thought Holder was helping police find

Popejoy and that he assisted in treating Popejoy when she injured herself. Finally,

Popejoy testified that he locked her in his room when she determined, and communicated

to Hudson, that she feared that authorities were closing in on her. Bearing in mind that

we may not reweigh the evidence or make our own assessment of witness credibility, we

conclude there was sufficient evidence from which a jury could conclude that Hudson

harbored Popejoy.

                               Non-Mirandized Statement

       While Hudson was detained in the back of a police vehicle outside his house,

Deputy McNeil asked him, without first reading him his Miranda rights, if he knew the

whereabouts of Popejoy. He responded he did not. This statement was subsequently used

against him in his trial for concealing and/or harboring Popejoy.

       Prior to trial, the government moved for a Jackson v. Denno, 378 U.S. 368 (1964),

hearing to determine the voluntariness of Hudson’s non-Mirandized statement. Hudson


       4
        We note that “[§] 1071 does not proscribe all forms of aid to a fugitive.” United
States v. Mitchell, 177 F.3d 236, 239 (4th Cir. 1999). The harboring or concealing
element of the statute “requires some ‘affirmative, physical action’ by the defendant,”
such as “a ‘physical act of providing assistance, including food, shelter, and other
assistance to aid the prisoner in avoiding detection and apprehension.’” Id. (quoting
Lockhart, 956 F.2d at 1423); see also Hill, 279 F.3d at 738 (“[A]ny physical act of
providing assistance, including food, shelter, and other assistance to aid the [fugitive] in
avoiding detection and apprehension will make out a violation of section 1071.” (further
quotation omitted)).

                                             10
filed a motion to suppress the statement. The district court conducted a hearing and ruled

Hudson’s statement was admissible:

              Well, I’m satisfied this qualifies for the safety exception to the
       Miranda rule. This is obviously a very volatile situation. Deputy McNeil
       had information that Ms. Popejoy had a weapon, suggested by her son.
              . . . [The fact that] the warrant [was] for a felon in possession of a
       weapon . . . even adds to the fact that that was a charge against her, and
       nighttime at this home, I think it was imperative they find out where she
       was and to diffuse a dangerous situation by finding it out as quickly as
       possible. So I do find it falls under that exception and I’ll overrule the
       objection.

ROA, Vol. 2 at 56.

       “In reviewing the district court’s denial of a motion to suppress, we consider the

evidence in a light most favorable to the government and accept the district court’s factual

findings unless they are clearly erroneous.” United States v. Rambo, 365 F.3d 906, 909

(10th Cir. 2004). We review de novo conclusions of law. Id. “Determinations of witness

credibility are subject to review under this standard.” United States v. Cavely, 318 F.3d

987, 992 (10th Cir.), cert. denied, 123 S. Ct. 2653 (2003).

       The government argues the district court correctly held that the public safety

exception to Miranda, stated in New York v. Quarles, 467 U.S. 649, 655-56 (1984),

applies to McNeil’s question concerning the whereabouts of Popejoy. We need not

decide whether the district court correctly applied the Quarles public safety exception to

McNeil’s question and Hudson’s response, because we conclude that, even if the

admission of the statement was erroneous under Miranda, its admission was harmless


                                             11
beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 24 (1967). “The

erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against

self-incrimination . . . [is] subject to harmless-error analysis under our cases.” Neder v.

United States, 527 U.S. 1, 18 (1999) (citations omitted); see also Arizona v. Fulminante,

499 U.S. 279, 306-12 (1991) (applying harmless error analysis to confession coerced in

violation of Fifth Amendment); United States v. Perdue, 8 F.3d 1455, 1469 (10th Cir.

1993) (applying harmless error analysis to admission of statement made in violation of

Miranda); see also, e.g., Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998)

(applying harmless beyond a reasonable doubt standard to erroneous admission of

inculpatory pre-Miranda statements).

       “In conducting harmless error analysis, we review the record de novo.” Perdue, 8

F.3d at 1469. Further, “[t]o hold an error of constitutional dimension harmless, we must

conclude ‘the properly admitted evidence of guilt is so overwhelming, and the prejudicial

effect of the [erroneously admitted statement] is so insignificant by comparison, that it is

clear beyond a reasonable doubt that the improper use of the [statement] was harmless

error.” United States v. Glass, 128 F.3d 1398, 1403 (10th Cir. 1997) (quoting Schneble v.

Florida, 405 U.S. 427, 430 (1972)).

       After carefully reviewing the record, we conclude there was ample other evidence,

indeed overwhelming evidence, besides the statement to McNeil, supporting Hudson’s

conviction for harboring a fugitive. As we indicated in the context of our discussion of


                                             12
Hudson’s sufficiency of the evidence claim, there was testimony from several witnesses

that Hudson knew of the existence of the warrant for Popejoy’s arrest and provided her

assistance in avoiding detection by letting her borrow his car on several occasions, letting

her stay with him at his house for periods of time including at least one overnight visit,

and threatening to harm Holder if he tried to turn her in. The fact that the jury heard that

he denied knowing her whereabouts, or denied knowing who she was, immediately prior

to her arrest in his locked bedroom5 would have made very little difference in their

assessment of the evidence. “In this case, we conclude that the ‘minds of an average jury’

would not have found the [prosecution’s] case significantly less persuasive had the

testimony as to [Hudson’s statement to McNeil] been excluded.” Schneble, 405 U.S. at

432; see also United States v. Sarracino, 340 F.3d 1148, 1164 (10th Cir. 2003). We are

satisfied that the admission of Hudson’s statement was harmless beyond a reasonable

doubt.

                         Warrantless Search of Hudson’s Home

         Based upon information Holder had given authorities, the police reasonably

believed that Popejoy was at Hudson’s house. After receiving Hudson’s response that he

did not know Popejoy, or did not know where she was, McNeil talked to Meredith, who

was also detained outside Hudson’s house. After talking to Meredith, police officers



        As indicated, she testified that he locked her in his room when she perceived her
         5

apprehension might be imminent. The jury evidently discounted Hudson’s testimony to
the contrary.

                                             13
approached the house. McNeil testified that the front door was partially open and he

could see Goad and another woman in the living room. When officers entered the house

and asked about Popejoy’s whereabouts, Goad told them that Popejoy had left. When

officers entered Hudson’s locked bedroom, they found Popejoy hiding under some

clothes in his closet. After arresting Popejoy, officers applied for and obtained a search

warrant to seize “paperwork items, narcotic paraphernalia and narcotics.” ROA, Vol. 3 at

252.

       The government asserts that Hudson never challenged the warrantless entry into

the house and search leading to Popejoy’s arrest. Hudson does not claim that he raised

this issue, nor does he indicate where in the record any objection appears. We therefore

assume he has conceded that he failed to raise this issue in the district court, or to file any

motion to suppress evidence obtained pursuant to the warrantless entry and search.

       Hudson challenges the warrantless entry into the house and the search for the first

time on appeal. As a result, we review the district court’s failure to sua sponte suppress

the fruits of the search under the plain error standard set forth in United States v. Olano,

507 U.S. 725, 731 (1993). See United States v. Lang, 364 F.3d 1210, 1216 n.3 (10th Cir.

2004); see also Fed. R. Crim. P. 52(b). Under the plain error standard, an appellant must

clear several hurdles:

       [T]he error must (1) be an actual error that was forfeited; (2) be plain or
       obvious; and (3) affect substantial rights, in other words, in most cases the
       error must be prejudicial, i.e., it must have affected the outcome of the trial.
       . . . Given plain error that affects substantial rights, an appellate court

                                              14
       should exercise its discretion and notice such error where it either (a) results
       in the conviction of one actually innocent, or (b) seriously affects the
       fairness, integrity or public reputation of judicial proceedings.

United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (internal quotation omitted).

       Applying this standard to Hudson’s Fourth Amendment claim, even if we assume

an actual error was forfeited and that the error was “plain or obvious,” the district court’s

failure to sua sponte suppress the fruits of the search did not affect Hudson’s substantial

rights. Specifically, we conclude, apart from the fact the police discovered Popejoy in

Hudson’s room, there was persuasive evidence presented at trial that over the course of a

week, Hudson both harbored Popejoy and intended to conceal her from the police.

Further, Hudson has not carried his burden to show that the error seriously affected the

fairness, integrity, or public reputation of the judicial proceedings. See Olano, 507 U.S.

at 736 (stating defendant, rather than Government, bears burden of persuasion with

respect to third prong of plain error test); United States v. Moyer, 282 F.3d 1311, 1319

(10th Cir. 2002) (concluding imposition of illegal sentence constitutes plain error even if

erroneous sentence benefits defendant); see also United States v. Prouty, 303 F.3d 1249

(11th Cir. 2002) (holding district court committed plain error in failing to allow defendant

right to allocute at sentencing and sentencing him at high end of guidelines).

       We reject the government’s argument that exigent circumstances justified their

warrantless entry. To support a claim of exigency, law enforcement officers must have

reasonable grounds to believe there is immediate need to protect their lives or property, or


                                             15
the lives or property of others; the search warrant must not be motivated by intent to arrest

and seize evidence; and some reasonable basis approaching probable cause must exist to

associate an emergency with the area or place to be searched. United States v. Smith, 797

F.2d 836, 840 (10th Cir. 1986). The burden is on the government to show exigency. Id.

In assessing whether this burden has been met, the court evaluates the circumstances as

they would have appeared to prudent, cautious, and trained officers. United States v.

Scroger, 98 F.3d 1256, 1259 (10th Cir. 1996).

       To prove exigency, the government relies upon the officers’ belief that Popejoy

was in Hudson’s house, was armed, and might escape again, as she had eluded capture for

a week. These facts do not support a finding that exigent circumstances justified a

warrantless search of the residence. There was no emergency here. There was no basis

for concluding that the officers had an immediate need to enter the house to protect life or

property. There was also no basis to conclude that the officers had to enter a house to

protect themselves and insure their safety. Instead, it would appear that, by entering the

house, the officers only increased their potential for harm. More importantly, the

warrantless entry appears to have been motivated purely by the officers’ intent to arrest

Popejoy.

                                 Other Crimes Evidence

       Finally, Hudson argues the district court committed plain error in allowing the




                                             16
admission of evidence of other crimes.6 Hudson argues the government gave no notice

that it intended to “introduce evidence that Hudson and others with whom Popejoy stayed

during the one-week period at issue were drug users, dealers and manufacturers. Nor did

the government give notice of intent to insinuate Popejoy, Meredith, and by association,

Hudson, were associated with the ‘Outlaw Motorcycle Gang.’” Aplt. Br. at 33.

       We agree with the government that Hudson fails to demonstrate any prejudice

stemming from the few references to the Outlaw Motorcycle Gang. There was no

allegation that Hudson had committed any “other crime” in connection with the gang, and

the reference to it was primarily to explain why the warrant for Popejoy’s arrest had been

issued in December 2002 but remained sealed until April 8, 2003.7

       Hudson also alleges he suffered prejudice because the government elicited

testimony about illegal drugs and drug use by Hudson and others, and that such testimony

should have been excluded under Federal Rule of Evidence 404(b). Hudson points to

three times during his trial when the government elicited such testimony. At one point

there was brief testimony that two men with whom Popejoy had stayed were arrested

when methamphetamine labs were discovered in their home and car, respectively.

       6
         Hudson concedes he failed to object to the admission of these “other crimes” at
trial, and that our review is accordingly for plain error only.
       7
         McNeil testified that there had been “an ongoing investigation into the Outlaws
Motorcycle Club in the Oklahoma City area, and it was decided that even though some of
the warrants came out earlier, we were going to attempt to serve all the fugitive warrants
at the same time starting on April the 8th.” ROA, Vol. 2 at 76. There was no warrant for
Hudson at the time he was harboring Popejoy.

                                            17
McNeil also testified that Hudson, Popejoy and Meredith were “drug associates,” and

there was testimony that Goad, who lived in the same house as Hudson, was a drug user

and had last used drugs with Hudson on April 8th or 9th. This testimony prompted an

admonition from the court to the jury that Hudson was not on trial for drug use.

       Rule 404(b) only applies to evidence of acts extrinsic to the charged crime.
       An uncharged act may not be extrinsic if it was part of the scheme for
       which a defendant is being prosecuted, or if it was inextricably intertwined
       with the charged crime such that a witness’ testimony would have been
       confusing and incomplete without mention of the prior act.

United States v. Record, 873 F.2d 1363, 1372 n.5 (10th Cir. 1989) (citations and further

quotation omitted). Intrinsic other act evidence is still excludable “if its probative value

is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. The

government argues that the evidence was inextricably intertwined with the crime for

which Hudson was being prosecuted, and that it was necessary to provide a context for

the actions of the various individuals involved.

       We conclude that such testimony, even if erroneously admitted, did not prejudice

Hudson so as to meet our plain error standard of review. There was ample evidence

supporting his conviction for harboring Popejoy, and the court specifically reminded the

jury that Hudson was not on trial for any drug-related activity. Further, while there was

other testimony in this case concerning drug use, it was elicited by defense counsel, either

to undermine the credibility of witnesses who were testifying or to minimize Hudson’s

culpability. In sum, we conclude there was no plain error in the admission of evidence of


                                             18
other illegal conduct in this case.

                                      CONCLUSION

       For the foregoing reasons, we AFFIRM Hudson’s conviction.

                                               ENTERED FOR THE COURT

                                               Per Curiam




                                          19
No. 03-6282; United States v. Hudson

Anderson, Circuit Judge, concurring:


       I concur in the result in this case, and in all parts of the majority opinion, except

the rationale for the majority’s conclusion that the warrantless search of Hudson’s house

does not require suppression of the fruits of that search. The majority rejects the

government’s argument that exigent circumstances justified the warrantless search, and

instead concludes that the failure to suppress the fruits of that search did not affect

Hudson’s substantial rights. I would hold that the district court’s factual finding—that

the situation facing officers at the time of the search was volatile and dangerous—is not

clearly erroneous and supports the conclusion that exigent circumstances justified the

warrantless search.

       As the majority notes, Hudson failed to argue before the district court that the

warrantless search was improper. Accordingly, the district court made no specific

findings on the matter. The court did find, however, in connection with its analysis of the

public safety exception to Miranda, that the situation facing officers at the time was “very

volatile” and “dangerous.” ROA, Vol. 2 at 56. The district court had also heard

McNeil’s testimony in the Jackson v. Denno hearing that, on a prior occasion when he

attempted to arrest Meredith, he (Meredith), accompanied by Popejoy, attempted to evade

police in a high-speed chase, following which they crashed and fled on foot. McNeil

further testified at the hearing that he “believe[d] that Ms. Popejoy was on the property or

in the house with a gun and there were at least six law enforcement officers standing in
the yard.” Id. at 54. Bearing in mind that the assessment of exigency requires an analysis

of how the circumstances would have appeared to prudent, cautious and trained officers,

United States v. Scroger, 98 F.3d 1256, 1259 (10th Cir. 1996), and further bearing in

mind that the district court evaluated the credibility of the testifying officers, I would hold

that the court’s factual findings support the conclusion that exigent circumstances

justified the warrantless search.




                                               2
