United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2948
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota
Anthony Joseph Tenerelli, *
*
Appellant. *
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Submitted: June 16, 2010
Filed: August 2, 2010
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Before RILEY, Chief Judge, CLEVENGER1 and COLLOTON, Circuit Judges.
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CLEVENGER, Circuit Judge.
Anthony Tenerelli appeals from his convictions of conspiracy to distribute and
possess with intent to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 846; aiding and abetting possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and
18 U.S.C. § 2; and felon in possession of a firearm in violation of 18 U.S.C. §§ 2,
1
The Honorable Raymond C. Clevenger, III, United States Circuit Judge for
the Court of Appeals for the Federal Circuit, sitting by designation.
922(g), and 924(e)(1). Mr. Tenerelli primarily argues that the district court2 erred in
refusing to suppress videotapes seized during a search of his residence and by
allowing testimony regarding statements and actions attributed to a confidential
reliable informant (“CRI”).
I
On August 16, 2006, Deputy Doug Wood, a narcotics investigator with the
Ramsey County Sheriff’s Department, used a CRI to arrange a methamphetamine
purchase from Mr. Tenerelli. Deputy Wood observed the CRI dial Mr. Tenerelli’s
phone number and listened to the CRI’s request to purchase methamphetamine, but
could not hear the other side of the conversation. After the phone call concluded,
Deputy Wood drove the CRI to a local home improvement store, searched the CRI for
contraband and money, gave the CRI money to use for the methamphetamine
purchase, and dropped the CRI off in front of the store. Meanwhile, officers stationed
at Mr. Tenerelli’s residence observed him get into his car and drive to the same store.
The officers saw Mr. Tenerelli enter the store with the CRI and observed them exiting
together approximately five to six minutes later. The officers had no visual or audio
surveillance of Mr. Tenerelli and the CRI while they were in the store. The CRI
returned to Deputy Wood’s unmarked car with one-quarter ounce of
methamphetamine.
Based in part on this controlled buy, Deputy Wood sought a search warrant for
Mr. Tenerelli’s residence. The warrant was issued and authorized, inter alia, the
seizure of “photographs” and “papers, invoices, billings, charge plates, letters or other
things which would indicate the owner/renter/occupant of the premise[s].” On the
morning of August 24, 2006, Deputy Wood executed the warrant along with a SWAT
team and other Ramsey County officers. Mr. Tenerelli was found in the living room
of the residence at the time of the search. In close proximity to Mr. Tenerelli, the
2
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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officers seized a loaded 9mm firearm and methamphetamine. The officers also seized
9mm ammunition, cocaine, cash, drug notes, a digital scale, drug paraphernalia, a cell
phone, a cable bill addressed to Mr. Tenerelli at the residence, and videotapes that
depicted Mr. Tenerelli in possession of a gun and drugs. The officers suspected
Mr. Tenerelli also used a room at his parents’ house for drug sales and conducted a
second search, under the authority of another issued warrant, at Mr. Tenerelli’s
parents’ home. The evidence seized from Mr. Tenerelli’s parents’ home included a
box that contained drugs, Mr. Tenerelli’s driver’s license, and 9mm caliber
ammunition that fit the firearm seized at Mr. Tenerelli’s residence.
Mr. Tenerelli was arrested and indicted for drug and weapon possession crimes
in the District of Minnesota. Before trial, Mr. Tenerelli moved before a magistrate
judge to suppress the videotapes as having been illegally seized outside the scope of
the warrant. The magistrate judge rejected the argument and ruled that the videotapes
were lawfully seized because the warrant authorized the seizure of “photographs” and
“the videotapes fit within the common sense description of photographs given that a
video tape contains nothing more than a collection of still images.” The magistrate
judge also rejected arguments that probable cause was stale when the warrant was
executed and that the search was conducted with flagrant disregard for the limitations
of the warrant. The district court adopted the rulings of the magistrate judge and
allowed the videotapes to be entered into evidence against Mr. Tenerelli.
At trial, Deputy Wood and two other officers testified about the controlled buy
and about the evidence seized from Mr. Tenerelli’s residence. The jury also heard a
cooperating witness testify that he purchased methamphetamine from Mr. Tenerelli
at both Mr. Tenerelli’s residence and Mr. Tenerelli’s parents’ home and that he had
seen Mr. Tenerelli possess a 9mm firearm. Text messages from the seized cell phone
corroborated his testimony by reflecting Mr. Tenerelli’s efforts to collect a drug debt
from the cooperating witness. The testimony was also corroborated by seized drug
notes written by Mr. Tenerelli that referenced the cooperating witness. Portions of the
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seized videotapes were also used by the prosecution to show Mr. Tenerelli in
possession of drugs and a firearm. The jury convicted Mr. Tenerelli of all charges.
II
A
Mr. Tenerelli claims his Fourth Amendment rights were violated when the
district court denied his motion to suppress the videotapes. In reviewing the denial
of a motion to suppress, we review the district court’s factual findings for clear error
and the legal question of whether the defendant’s Fourth Amendment rights were
violated de novo. United States v. Williams, 577 F.3d 878, 880 (8th Cir. 2009). We
will affirm the district court’s decision on a suppression motion “unless it is not
supported by substantial evidence on the record; it reflects an erroneous view of the
applicable law; or upon review of the entire record, [we are] left with the definite and
firm conviction that a mistake has been made.” United States v. Perez-Perez, 337 F.3d
990, 993-94 (8th Cir. 2003) (quoting United States v. Layne, 973 F.2d 1417, 1420
(8th Cir. 1992)).
Mr. Tenerelli renews on appeal the same suppression argument that was
rejected by the magistrate judge and the district court. Mr. Tenerelli argues that the
use of the videotapes at trial was erroneous because the warrant does not specifically
authorize the seizure of videotapes from his residence. The government responds by
supporting the district court’s ruling that the videotapes should fall within the common
sense definition of “photographs” and argues in the alternative that the videotapes
were properly seized as “other items which would indicate the owner/renter/occupant
of the premise[s].”
We agree with Mr. Tenerelli that a videotape is often more than a mere
collection of still images and this calls into doubt the district court’s rationale. The
government is also correct, however, that the contents of a seized videotape might
reasonably be expected to indicate the owner of the premises. We need not decide
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whether the videotapes were properly seized under either or both of the categories,
though, for it is inconsequential to the result. Even assuming that Mr. Tenerelli is
correct that the seized videotapes were not within the scope of the warrant, their
admission was harmless. See Chambers v. Maroney, 399 U.S. 42, 53 (1970)
(evidence admitted in violation of the Fourth Amendment is subject to harmless error
review); Chapman v. California, 386 U.S. 18, 24 (1966) (“before a federal
constitutional error can be held harmless, a court must be able to declare a belief that
it was harmless beyond a reasonable doubt”); see also United States v. Timley,
443 F.3d 615, 623 (8th Cir. 2006); United States v. Noske, 117 F.3d 1053, 1058 (8th
Cir. 1997) (“Even if the search violated [the defendant’s] Fourth Amendment
rights . . . admission of the [evidence] was harmless beyond a reasonable doubt.”).
Mr. Tenerelli was convicted for crimes related to possession of drugs and a
firearm. The government introduced evidence independent of the videotapes that
supports the jury’s verdict, including: approximately 100 grams of methamphetamine,
drug notes in Mr. Tenerelli’s handwriting, a digital scale, drug packaging materials, a
9mm semi-automatic pistol, and 9mm ammunition. Trial testimony established that
a loaded 9mm firearm and drugs were found in close proximity to Mr. Tenerelli when
officers entered his residence on August 24, 2006.
“[P]ossession may be either actual or constructive,” and “constructive possession
exists when a person has ownership, dominion, or actual control over the contraband.”
United States v. Moore, 212 F.3d 441, 445 (8th Cir. 2000) (quoting United States v.
Anderson, 78 F.3d 420, 422 (8th Cir. 1996)). Like controlled substances, possession
of a firearm can be actual or constructive. United States v. Piwowar, 492 F.3d 953,
955 (8th Cir. 2007). Constructive possession “requires knowledge of an object, the
ability to control it, and the intent to do so.” Id. (citing United States v.
Cuevas-Arrendondo, 469 F.3d 712, 715 (8th Cir. 2006)).
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There is substantial evidence to support the jury’s findings that Mr. Tenerelli
was in possession of the firearm, ammunition, and methamphetamine. At the time the
search warrant was executed at his residence, Mr. Tenerelli was found in the living
room in close proximity to the firearm and methamphetamine. Seized items at the
residence, including a cable bill addressed to Mr. Tenerelli and drug notes in his
handwriting, indicate that he was in control of the premises. The box found at
Mr. Tenerelli’s parents’ home containing Mr. Tenerelli’s driver’s license and
ammunition for the firearm further evidences Mr. Tenerelli’s possession of the firearm.
Additionally, a cooperating witness testified that he had seen Mr. Tenerelli in
actual possession of both methamphetamine and the same firearm. The witness
testified that he purchased drugs from Mr. Tenerelli for resale at both Mr. Tenerelli’s
residence and at Mr. Tenerelli’s parents’ home. Text messages from Mr. Tenerelli to
his brother corroborated the witness’ testimony and showed Mr. Tenerelli and his
brother working to collect a drug debt from the witness. Drug notes evidencing
specific drug purchases by the cooperating witness were also obtained from
Mr. Tenerelli’s residence. We conclude that any error in admitting the videotapes was
harmless beyond a reasonable doubt.
B
Mr. Tenerelli also argues that the videotapes should have been suppressed
because the probable cause supporting the search warrant was stale. The warrant was
executed six days after issuance. This timeframe falls within the allowable range for
execution specified by Minnesota and federal law. See Minn. Stat. § 626.15(a); Fed.
R. Crim. P. 41(e)(2)(A)(i). Even so, we have said that a search warrant must be
executed “promptly.” See United States v. Shegog, 787 F.2d 420, 422 (8th Cir. 1986).
“In determining whether probable cause dissipated over time, a court must ‘evaluate
the nature of the criminal activity and the kind of property for which authorization to
search is sought.’” United States v. Simpkins, 914 F.2d 1054, 1059 (8th Cir. 1990)
(quoting United States v. Foster, 711 F.2d 871, 878 (9th Cir. 1983)).
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Mr. Tenerelli does not dispute the adequacy of probable cause to support the
warrant’s issuance, so we look to any intervening facts and circumstances. See, e.g.,
United States v. Williams, 10 F.3d 590, 595 (8th Cir. 1993) (“The facts supporting the
issuance of the warrant on October 22, 1992 . . . substantially correspond to those facts
existing on October 30, 1992”); Shegog, 787 F.2d at 422 (“The essential facts . . . had
not substantially changed during the eight-day period of delay between the issuance
and execution of the search warrant.”). Mr. Tenerelli does not demonstrate why the
evidence supporting probable cause would have gone stale in the intervening six days
and we find no evidence on our own of any changed circumstances between when the
warrant was authorized and when it was executed. The ongoing nature of
methamphetamine distribution also supports the continued existence of probable cause.
See Williams, 10 F.3d at 595. It was reasonable for the officers to conclude that Mr.
Tenerelli was likely to possess methamphetamine at his residence when the search
warrant was executed.
C
Mr. Tenerelli also argues that all of the seized evidence should have been
excluded because the officers acted with flagrant disregard for the limitations of the
search warrant. See Marvin v. United States, 732 F.2d 669, 674-75 (8th Cir. 1984)
(“[F]lagrant disregard for the limitations of a search warrant might make an otherwise
valid search an impermissible general search and thus require the suppression or return
of all evidence seized during the search.”). Mr. Tenerelli points to the district court’s
suppression of a closed circuit camera and alleged inconsistencies in the police
inventory listing of seized items to argue the officers flagrantly disregarded the scope
of the warrant.
However, as we stated in United States v. Decker, “[t]he Supreme Court,
however, has expressly dictated that the flagrant disregard standard applies only where
the government exceeds the scope of the authorized search in terms of the places
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searched, and not to cases in which the government indulges in excessive seizures.”
956 F.2d 773, 779 (8th Cir. 1992) (citing Waller v. Georgia, 467 U.S. 39, 43 n.3
(1984)). When officers unlawfully seize certain items but do not flagrantly disregard
the limits of the warrant by unreasonably searching unauthorized places, “there is
certainly no requirement that lawfully seized evidence be suppressed as well.” Waller,
467 U.S. at 43 n.3. Accordingly, we affirm the district court’s rejection of this
argument as there was no flagrant disregard of the limits of the warrant.
III
Mr. Tenerelli challenges that the district court erred by allowing Deputy Wood
to make certain statements about the controlled drug buy. Specifically, Mr. Tenerelli
argues that Deputy Wood’s statements describing what he observed when the CRI
dialed Mr. Tenerelli’s telephone number and ordered methamphetamine from the
person who answered are inadmissible hearsay. The government counters that Deputy
Wood’s statements were not offered for the truth, but were instead just describing
verbal acts that he witnessed.
“‘Evidentiary rulings are reviewed for abuse of discretion,’ giving due
‘deference to the district judge who saw and heard the evidence.’” United States v.
Two Elk, 536 F.3d 890, 900 (8th Cir. 2008) (quoting United States v. Davidson,
449 F.3d 849, 853 (8th Cir. 2006)). An error admitting hearsay testimony “that does
not affect substantial rights must be disregarded.” See Fed. R. Crim. P. 52(a). “An
error is harmless if we conclude that no substantial rights of the defendant were
affected and that the error did not influence or had only a very slight influence on the
verdict.” United States v. Eagle, 498 F.3d 885, 888 (8th Cir. 2007) (quotation
omitted).
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). “The hearsay rule excludes out-of-court assertions
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used to prove the truth of the facts asserted in them. Verbal acts, however, are not
hearsay because they are not assertions and not adduced to prove the truth of the
matter.” Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir. 1992).
Deputy Wood testified:
Q. On August 16, 2006, did you make any request of the CRI to
contact Anthony Tenerelli?
A. Yes, I did.
Q. And were you present when that occurred?
A. Yes, I was.
Q. What did you observe the CRI do without getting into what was
said?
A. She dialed his phone number.
Q. Okay. You observed this?
A. Yes, I observed that.
Q. And there was – then what did she do in regard to the call? Was she
speaking?
A. Yes.
...
Q. What was the intention behind the phone call by the CRI to
Mr. Tenerelli?
A. She ordered methamphetamine.
Q. That was the act that she did?
A. Yes.
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(T. Tr. at 228-29.) Mr. Tenerelli does not point to any particular statement made by
Deputy Wood as hearsay. Instead, Mr. Tenerelli broadly alleges that the effect of the
testimony was to elicit an implied assertion of what the CRI told Deputy Wood about
aspects of the purchase that were not witnessed by the officers. Notably, Deputy Wood
was cross-examined extensively about his observations of the controlled buy.
We agree with the district court that Deputy Wood’s statements regarding what
he observed during the controlled buy are not hearsay; no statements of the CRI were
offered for the underlying truth. Instead, Deputy Wood testified about the fact that the
order occurred, a verbal act of which Deputy Wood had personal knowledge. See
United States v. Roach, 164 F.3d 403, 410 (8th Cir. 1998) (“testimony that [a person]
had asked her to sell drugs involved a verbal act; the government offered the statement
not to prove its truth, but that it had been made”) (citing Fed. R. Evid. 801(c) advisory
committee’s note on 1972 proposed rule and United States v. Robinson, 774 F.2d 261,
273 (8th Cir. 1985)). Further, an out of court statement is not hearsay when offered to
explain why an officer conducted an investigation in a certain way. United States v.
Brown, 560 F.3d 754, 764 (8th Cir. 2009). It was not improper for Deputy Wood to
testify about his observations that led to the issuance of the search warrant when no
statement of the CRI was ever offered to prove an underlying truth. We find no
reversible error in the admission of Deputy Wood’s testimony.
Because we find no error in the testimony regarding the CRI, we also reject
Mr. Tenerelli’s argument that the district court erred by overruling his objection to the
government’s discussion of the controlled buy during closing arguments. We reject
Mr. Tenerelli’s prosecutorial misconduct argument on the same grounds.
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IV
Mr. Tenerelli also complains that the admission of Deputy Wood’s testimony
violates the Confrontation Clause of the Sixth Amendment which provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” This provision bars “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.” Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). Because Mr. Tenerelli did not raise a
Confrontation Clause objection at trial, we review his claim for plain error. See United
States v. Rodriguez, 484 F.3d 1006, 1013 (8th Cir. 2007).
The only possible testimonial statement at issue is the act of ordering
methamphetamine on the phone, which was introduced to explain why the officers
were later present to observe what occurred at the home improvement store. This court
has noted that regardless of whether an out of court statement is testimonial, a right to
confrontation is not implicated if the testimony is not offered or admitted to prove the
truth of the matter asserted. Id. at 1013-14 (out of court statement admitted to show
defendant’s state of mind did not implicate the Confrontation Clause); United States
v. Brown, 560 F.3d 754, 764-65 (8th Cir. 2009) (out of court statement admitted to
show why an officer conducted his investigation in a certain way did not implicate the
Confrontation Clause); see also Crawford, 541 U.S. at 59 n.9 (“The [Confrontation]
Clause . . . does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.”). The CRI’s statement was only offered
to explain subsequent actions of the officers and Mr. Tenerelli had the opportunity to
cross-examine those officers at trial. Because no statement of the CRI was admitted
for the truth of the matter asserted, the Confrontation Clause is not implicated here.
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V
Mr. Tenerelli argues the district court abused its discretion in denying his motion
to exclude the testimony of Ms. Runyon, the government’s handwriting expert. Prior
to trial, Mr. Tenerelli moved to exclude Ms. Runyon from testifying on the grounds
that the defense would not have adequate time to prepare cross-examination nor retain
its own expert to refute the opinion because the government failed to provide adequate
notice of the testimony as required by Federal Rule of Criminal Procedure 16(a)(1)(G).
(R. Doc. 76.) The government countered that the defense was aware of the
handwriting samples taken from Mr. Tenerelli’s residence and invited to examine them
as early as October 2007. The government also argued that it made Ms. Runyon’s
report available to the defense as soon as it received the report in compliance with Rule
16 and all relevant district court orders.
We review a district court’s decision to admit expert testimony for an abuse of
discretion. See United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir. 2007). Rule
16(a)(1)(G) states that “[a]t the defendant’s request, the government must give to the
defendant a written summary of any testimony that the government intends to use
under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief
at trial.” “A defendant asserting reversible error under Rule 16(a)(1)(G) must
demonstrate prejudice resulting from the district court’s decision to admit the contested
testimony.” Id. (citing United States v. Anderson, 446 F.3d 870, 875 (8th Cir. 2006).
It appears that Ms. Runyon was made reasonably available to defense counsel
prior to trial and Mr. Tenerelli did not request a continuance of his trial in order to
prepare a defense to counter Ms. Runyon’s analysis. Instead, Mr. Tenerelli sought only
exclusion to cure the allegedly late disclosure of the contents of Ms. Runyon’s
proposed testimony. Mr. Tenerelli does not demonstrate how his defense was
prejudiced by the allegedly late notice of the contents of Ms. Runyon’s testimony or
how he would have been able to counter the testimony if it had been earlier disclosed.
Mr. Tenerelli does not demonstrate prejudice and we accordingly find no error in the
admission of the expert testimony.
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VI
Finally, Mr. Tenerelli argues there is not sufficient evidence to support his
convictions. A denial of a motion for judgment of acquittal is reviewed de novo. See
United States v. Harris, 352 F.3d 362, 365 (8th Cir. 2003). In reviewing the record, we
view the evidence in the light most favorable to the government, resolve evidentiary
conflicts in favor of the government, and accept all reasonable inferences drawn from
the evidence that support the jury’s verdict. United States v. Thomas, 565 F.3d 438,
441 (8th Cir. 2009). “The court will reverse a jury’s verdict only where ‘no reasonable
jury could have found the [accused] guilty beyond a reasonable doubt.’” Id. (quoting
United States v. Harmon, 194 F.3d 890, 892 (8th Cir. 1999)).
There is substantial evidence in the record to support Mr. Tenerelli’s
convictions. Officers seized a loaded 9mm firearm and methamphetamine in close
proximity to Mr. Tenerelli at his residence. The officers also seized ammunition,
cocaine, cash, drug notes, a digital scale, drug paraphernalia, a cell phone, and a box
that contained drugs, Mr. Tenerelli’s driver’s license, and 9mm caliber ammunition that
fit the firearm. A cooperating witness testified about purchasing drugs from
Mr. Tenerelli and witnessed Mr. Tenerelli in possession of a firearm. Finally, the drug
notes in Mr. Tenerelli’s handwriting and the text messages in his cell phone confirmed
Mr. Tenerelli was trafficking in methamphetamine. We conclude that the evidence
supports the verdict and the district court properly denied Mr. Tenerelli’s motion for
acquittal of the judgment.
VII
Accordingly, we affirm Mr. Tenerelli’s convictions. We also deny all
pending motions.
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