1

 The Honorable Raymond C. Clevenger, III, United States Circuit Judge for

the Court of Appeals for the Federal Circuit, sitting by designation.

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,
2

 The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

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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
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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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