1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 07-2181

________________ United States of America, Appellee,

v. Billy Jean Love, Appellant. * * * * * * * * * Appeal from the United States District Court for the District of Minnesota.

________________ Submitted: January 15, 2008 Filed: April 11, 2008

________________ Before BYE, BEAM and GRUENDER, Circuit Judges.

________________ GRUENDER, Circuit Judge. A jury convicted Billy Jean Love of bank robbery, a violation of 18 U.S.C. § 2113(a). Love challenges the district court’s 1 evidentiary ruling sustaining the Government’s objection to his counsel’s cross-examination on the basis that the question asked would have e licited inadmissible hearsay testimony. We affirm.2 See Miranda v. Arizona , 384 U.S. 436 (1966). -2- According to video surveillance, on October 10, 2006, a tall African-American man wearing sneakers, dark-colored pants, a dark blue coat w ith diagonal stitching, a white t-shirt, a hat, and glasses entere d the Twin Cities Federal Bank, a federally insured financial institution in St. Paul, Minnesota. This person robbed the bank by presenting a demand note to Genet Habtu, a bank teller. Habtu noticed, and video surveillance confirmed, that the robber had a “big gap” between his front two teeth. The robber provided Habtu with a plastic ba g, which she noticed contained personal mail. Habtu placed approximately $1,400 into the bag. The robber then fled the bank. Habtu immediately called the police and provided a description of the robber. Approximately four blocks from the bank, O fficer Daniel Zebro of the St. Paul Police Department noticed Love, who matched the robber’s description, carrying a plastic bag and looking around suspiciously. Offi cer Zebro pulled up next to Love and identified himself as a police officer. L ove fled, and the police chased him through the streets and skyways of downtown St. Paul. The police eventually caught and arrested him. Upon a search incident to arrest, the police discovered a plastic toy gun and the demand note used in the bank robbery in L ove’s pockets. The police also recovered the plastic bag, which contained cash, pieces of mail addressed to Ruth Love and an application for assistance bearing Love’s full name and address. The officers also noticed that Love had a large gap between hi s front two teeth. After Love was given his Miranda 2rights, FBI Agent Patrick Michaels interviewed him. Love claimed that he did not rob the bank but found the jack et and the bag of money in a nearby dumpster. Love was charged in a one-count indictment with bank robbery in violation of 18 U.S.C. § 2113(a).-3- At trial, Agent Michaels testified as a witness for the Government. On crossexamination, Love’s counsel asked: “Age nt Michaels, you learned during the course of this investigation, you received informati on in the course of this investigation that the jacket and the bag of money in this case had been recovered from a dumpster, true?” The Government objected on hearsay grounds. At sidebar, Love’s counsel argued that the statement was not being elic ited for the truth of the matter asserted but for the “accuracy of the investigation, wh ich goes to reasonable doubt as to whether all possible leads in this case were inves tigated properly.” The Government renewed its objection on hearsay grounds and, to the ex tent that the statement was not offered for the truth of the matter asserted, objectedon the basis of relevance. The district court sustained the objection.
Love’s counsel continued to cross-examine Agent Michaels. He established that bank robbers often ditch ite ms such as clothing and money, that the hat, glasses, and gloves worn by the robber were never recovered, and that Agent Michaels never looked for these items. In closing argument, Love’s counsel argued that Agent Michaels failed to investigate properly the bank robbery. The jury returned a guilty verdict, and the district court senten ced Love to 57 months’ imprisonment. Love now appeals his conviction and seek s a new trial, arguing that the crossexamination question of Agent Michaels did not seek to elicit inadmissible hearsay testimony and that the evidence should not havebeen excluded. “We review a district court’s evidentiary ruling for abuse of di scretion, including thos e regarding the scope of cross-examination.” United States v. Gordon , 510 F.3d 811, 816 (8th Cir. 2007). We also will not reverse an erroneous ev identiary ruling if the error was harmless. United States v. McPike , 512 F.3d 1052, 1055 (8th Cir. 2008) . “An evidentiary error is harmless when, after reviewing the entire record, we determine that the substantial rights of the defendant were unaffected, and that the erro r did not influence or had only a slight influence on the verdict.” Id . (internal quotation omitted).-4- “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in eviden ce to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). “[A] statement is not hearsay ‘if it is offered for the limited purpose of explaining why a police investigation was undertaken.’” United States v. Davis , 449 F.3d 842, 847 (8th Cir. 2006) (quoting United States v. Watson , 952 F.2d 982, 987 (8th Cir. 1991)). Here, the cross-examination question clearly sought to introduce into evidence an ex culpatory statement made by Love to Agent Michaels. This out-of-court statement was hearsay because the person testifying, Agent Michaels, was not the declar ant and because the statement was offered to prove the truth of the matter asserted, namely, that Love found the jacket and money in a dumpster. Love argues that the statement was not offered to prove the truth of the matter asserted, but it was offered for the limited purpose of showing that the investigation was not thoroughl y conducted. However, Love ’s statement reveals that the investigation was not thorough only if he indeed found the jacket and money in a dumpster. Thus, “the proffered testimony would only have its de sired effect if in fact the statement[] [w as] true,” and being o ffered for the truth of the matter asserted. United States v. Sadler , 234 F.3d 368, 372 (8th Cir. 2000) (upholding the exclusion of defense witness testimony on th e basis of hearsay). Theref ore, the district court did not abuse its discretion by sustaining the hearsay objection to defense counsel’s question.
Even if the district court had erred in sustaining the objection, such an error did not affect Love’s substantial rights becauseit had little to no influence on the verdict. The Government presented overwhelming evid ence of Love’s guilt. The jury heard evidence that Love was near the scene of the crime immediately after the robbery; Love matched the physical de scription of the robber, including the distinctive large gap between his front teeth; Love was w earing the same clothes as the bank robber; Love was carrying a toy gun; Love had the demand note used in the robbery; and Love was caught with the pl astic bag that contained th e money, personal mail and an-5- assistance application with his name on it. Thus, even if the exclusion of the crossexamination question was error, it would clearly be harmless. Accordingly, we affirm Love’s conviction.

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