*

The Honorable Paul D. Borman, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0210p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JERRY CHARLES NELSON, JR.,

Defendant-Appellant.

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No. 12-5477

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:10-cr-00053—Todd J. Campbell, Chief District Judge.

Argued: June 20, 2013

Decided and Filed: August 7, 2013 

Before: ROGERS and KETHLEDGE, Circuit Judges; BORMAN, District Judge.*

_________________

COUNSEL

ARGUED: Erik R. Herbert, Nashville, Tennessee, for Appellant. Cecil W.

VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for

Appellee. ON BRIEF: Erik R. Herbert, Nashville, Tennessee, for Appellant. William

L. Deneke, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for

Appellee.

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OPINION

_________________

ROGERS, Circuit Judge. Jerry Nelson appeals from his conviction for being a

felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g).

Nelson challenges the sufficiency of the evidence and argues, among other things, that

1
No. 12-5477 United States v. Nelson Page 2

prejudicial hearsay evidence was admitted in the form of police testimony regarding an

anonymous 911 caller’s description of an armed man fitting his exact characteristics.

At trial, the central question for the jury was whether Nelson possessed a gun, and the

district court permitted the Government to present the testimony of five police officers

describing in detail what the dispatcher told them about the suspect. The district court

accepted the Government’s argument that this evidence was admissible as background

information, and gave the jury a limiting instruction after each officer’s testimony.

Although we reject Nelson’s argument that there was not sufficient evidence of his guilt

to sustain the jury’s verdict, the judgment of conviction must be vacated because of the

prejudicial admission of the hearsay evidence, notwithstanding the Government’s

contention that this evidence was admitted only as background information.

In the early morning hours of June 15, 2009, Officers Joshua Meredith and

Tommy Massey of the Murfreesboro, Tennessee police department were dispatched in

response to an anonymous 911 call reporting that a black man wearing a blue shirt, with

a “poofy” afro, riding a bicycle, was armed with a pistol. Officer Meredith arrived at the

scene first and began to make conversation with a man, Jerry Nelson, who precisely

matched this description. Officer Massey then arrived to find Officer Meredith speaking

with Nelson from his patrol car. As Officer Meredith started to get out of his car to

speak to Nelson further, Nelson began to ride away on his bicycle. Officer Meredith

shouted at Nelson to stop, but Nelson kept riding away. Officer Massey, still in his

squad car and following Nelson at a distance of between ten and twenty-five feet,

observed Nelson reach into his waistband and throw a large, heavy object, which Officer

Massey believed to be a gun, into nearby bushes. Officer Massey continued following

Nelson across the street to a parking lot, where Nelson tried to abandon his bicycle and

continue his flight on foot. By this point, additional responding officers had joined the

pursuit, and Nelson was quickly stopped. Officer Massey recalls that this entire

sequence of events took place in approximately one minute.

After Nelson was placed under arrest, officers searched him and recovered

bullets from his pocket. Officer Massey sent two officers to search the area where he
No. 12-5477 United States v. Nelson Page 3

observed Nelson throw the heavy object into the bushes. The officers found a loaded

gun at that location. Nelson was eventually charged with being a convicted felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). Nelson

made a pretrial motion to prevent the Government from presenting any testimony

regarding the 911 caller’s description of the suspect on the grounds that this evidence

was inadmissible hearsay. The district court denied this motion and, after a trial, a jury

convicted Nelson. The district court denied Nelson’s post-trial motion for a judgment

of acquittal and, after a hearing, sentenced Nelson to eighty-four months’ imprisonment.

Nelson now appeals.

Although reversal is required on the hearsay-evidence issue, as explained below,

we first conclude that sufficient evidence supported the jury’s verdict. Sufficiency of

the evidence must be independently considered because a reversal on that ground would

preclude retrial. See Patterson v. Haskins, 470 F.3d 645, 651–53 (6th Cir. 2006); see

also Burks v. United States, 437 U.S. 1, 18 (1978).

The verdict was supported by sufficient evidence, and Nelson’s argument to the

contrary is meritless. This court reviews challenges to the sufficiency of the evidence

by determining “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Conviction under 18 U.S.C. § 922(g) requires proof that the defendant had previously

been convicted of a felony, and that he knowingly possessed a firearm that had traveled

in interstate commerce. United States v. Morrison, 594 F.3d 543, 544 (6th Cir. 2010).

At trial, Officer Massey testified that he observed Nelson remove a dark, heavy

object—which Officer Massey believed, based on his training and experience, was a

firearm—from Nelson’s waistband and throw it into the bushes. Officer Massey later

directed other officers to the area where Nelson had thrown the unidentified object,

where they recovered the gun. This was sufficient evidence for the jury to connect

Nelson to the gun. In addition, the Government presented evidence establishing that
No. 12-5477 United States v. Nelson Page 4

Nelson had a prior felony conviction, and that the gun was not manufactured in

Tennessee and had therefore traveled in interstate commerce.

Reversal is nonetheless required because the police officers’ testimony regarding

the anonymous 911 caller’s description of the suspect was hearsay evidence admitted to

prove that Nelson possessed a gun. The five officers’ detailed testimony, which was

based on an anonymous, out-of-court declarant’s observations, went directly to the key

issue for jury resolution, was not necessary for the Government to provide the jury with

a coherent narrative explaining the officers’ actions, and was too prejudicial for the harm

to be cured with a limiting instruction. Furthermore, the error was not harmless because

it is more probable than not that it had a material impact on the jury’s verdict.

The hearsay evidence should not have been admitted. Officers Massey and

Meredith each testified that the dispatcher told them an anonymous caller described the

suspect as “a black male with poofy hair wearing a blue shirt riding a bicycle who was

armed with some type [of] handgun,” and “a male black subject in the area of State and

Highland who was riding a bicycle with a blue shirt and a poofy wig that was armed with

some type of handgun.” No officer testified to having seen Nelson possess a gun, and

Officer Massey admitted that he relied on the dispatcher’s report to conclude that Nelson

possessed a gun.

 Contrary to the Government’s position, the police officers’ testimony about the

911 call, in the context of this case, was effectively offered to prove the truth of the

statements made, rather than to show background. This renders the statements hearsay

under Federal Rule of Evidence 801(c)(2), and thereby inadmissible under Rule 802.

It is true that background information that explains how law enforcement came to be

involved might not be hearsay because it is offered not for the truth of the matter

asserted, but rather to show why the officers acted as they did. See, e.g., United States

v. Caver, 470 F.3d 220, 239 (6th Cir. 2006); United States v. Aguwa, 123 F.3d 418, 421

(6th Cir. 1997). In this case, however, the anonymous 911 caller’s description was

neither relevant nor material because the officers’ background or state of mind were

never at issue at Nelson’s trial.
No. 12-5477 United States v. Nelson Page 5

Moreover, to the extent the jury needed to hear about what prompted the police

action, a less-detailed statement indicating that the police received a 911 call, without

detailing the caller’s description, would have avoided the prejudice problem while still

ensuring that the jury was given the minimal background information needed to

understand why the officers behaved as they did. For example, the officers could have

testified that they were responding to an anonymous complaint of illegal activity in the

area, or that they were responding to a report of a suspicious individual believed to be

dangerous. In United States v. Hearn, 500 F.3d 479, 483 (6th Cir. 2007), we indicated

that a statement “[t]hat the officers had [received] reports from [an out-of-court

declarant] of ‘some illegal activity,’ for example, would have sufficed” to show why the

authorities initiated their investigation of the defendant. Although Hearn dealt with a

Confrontation Clause violation rather than a hearsay-rule violation, this court’s concern

with allowing evidence about an out-of-court declarant’s statements directly to inculpate

the defendant is relevant here.

The Government suggests that, without hearing detailed testimony about the

suspect’s appearance, the jury would have been confused about why the officers were

questioning Nelson or, even worse, would have viewed the officers’ use of force in

drawing their weapons on Nelson as excessive. Its concern is overstated. The

Government contended that the jury needed to hear that the suspect was armed to

understand why the police responded as they did. See R. 98 at 14. But the jury heard

testimony that Officers Massey and Meredith arrived at the scene in response to the

911 call, encountered Nelson, and were speaking with him before he began fleeing. The

officers used force against Nelson only to prevent him from escaping, and Nelson was

initially arrested for resisting a stop and frisk rather than for gun possession. Even

without being given the details of the 911 caller’s description, a rational juror would not

conclude that the officers were arbitrarily harassing Nelson or using excessive force

against him.

This is not a case where evidence of an out-of-court declarant’s statements was

necessary to provide the jury with a coherent narrative explaining complex interactions
No. 12-5477 United States v. Nelson Page 6

1

Officers Meredith, Massey, Shan Harris, David Miller, and Bradley Premo all testified that the

911 caller described a man armed with a gun at the location where Nelson was found, and all but Officer

Miller testified that dispatch described the suspect as a black male with poofy hair, riding a bicycle, who

was armed with a gun.

between criminal defendants, police officers, and cooperating witnesses. See, e.g.,

Aguwa, 123 F.3d 418 at 421–22; United States v. Evans, 883 F.2d 496, 501 (6th Cir.

1989). In some cases a jury may become confused about why officers were targeting a

particular individual if the jury is not provided a coherent narrative of the investigation.

However, this case does not involve a complex police action involving, for example,

controlled drug purchases or confidential informants also involved in criminal activity.

Officers Massey and Meredith were simply responding to a complaint about a potentially

dangerous person, and a less-detailed description of the 911 caller’s complaint would

have eliminated potential juror confusion about why the police were in the area and

speaking with Nelson, without showing by unattributed statements that Nelson possessed

a gun. 

The hearsay nature of the 911-call evidence in this case is supported by similar

cases in other circuits. In United States v. Sallins, 993 F.2d 344, 345–46 (3d Cir. 1993),

the Third Circuit rejected a background-information argument, and held inadmissible as

hearsay police testimony regarding a radio dispatch based on a 911 call, and the contents

of the call, to the effect that there was a black male in black clothing carrying a gun at

a certain location. The court reasoned in part that the government could have simply

elicited testimony that the officers “were responding to a radio call or information

received,” and that “no background beyond what the officers testified they observed was

necessary to help the jury understand why [the officers] pursued and arrested Sallins.”

Id. at 346. As shown above, these considerations apply as well in this case. See also

United States v. Reyes, 18 F.3d 65, 69-72 (2d Cir. 1994).

The admission of the hearsay evidence here was not harmless because it is more

probable than not that the error materially affected the verdict. See Caver, 470 F.3d at

239 (stating standard). The testimony by five separate officers1

 about the 911 caller’s

statements repeatedly invited the jury to conclude that a man fitting Nelson’s exact
No. 12-5477 United States v. Nelson Page 7

description was seen armed with a handgun. The Government’s other evidence was

circumstantial, and no officer testified to having seen Nelson possess a gun. Moreover,

at least one officer testified that he relied on the hearsay evidence to conclude that

Nelson possessed a gun, belying the Government’s contention that the evidence about

the 911 caller’s statement was being offered merely as background information. In

Hearn, we concluded that because the out-of-court declarant’s statements “went to the

heart of the government’s case” against the defendant, the error—there, a Confrontation

Clause violation—was not harmless. Hearn, 500 F.3d at 485. The same reasoning

governs here because the Government’s case was likewise circumstantial and the hearsay

evidence went to the heart of the Government’s case. In light of these facts, the error in

admitting the hearsay evidence was not harmless.

The hearsay evidence was also prejudicial because the officers’ testimony went

to the very heart of the sole disputed issue for the jury’s resolution, namely whether

Nelson possessed a gun. Because five separate officers each testified as to what the

dispatcher told them, the fact that Nelson matched the description provided by the 911

caller was repeatedly emphasized at trial. Moreover, the consistency of the officers’

testimony about the suspect made it likely the jury would credit their testimony.

The curative instructions, moreover, were not sufficient to eliminate the prejudice

on the facts of this case. Although the district court gave the jury a limiting instruction

after each officer’s testimony—reminding them that the evidence about the suspect’s

description was not to be considered for its truth—the prejudicial nature of the evidence

and the fact that it went to the key issue for the jury’s resolution made it unlikely that the

limiting instruction adequately protected Nelson from prejudice. A limiting instruction

is not always sufficient to cure the harm of highly prejudicial information improperly

admitted at trial. See United States v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990); see

also Bruton v. United States, 391 U.S. 123, 132 (1968).

Although the hearsay issue alone requires reversal, we address Nelson’s other

claims to provide guidance to the district court on remand. The district court properly
No. 12-5477 United States v. Nelson Page 8

denied Nelson’s motion to suppress the gun and ammunition, and properly rejected

Nelson’s proposed jury instruction on police negligence.

Because the gun was abandoned property and Nelson had no legitimate

expectation of privacy in it or the place in which it was found, the government’s

warrantless search and seizure of that evidence did not violate the Fourth Amendment.

The warrantless search and seizure of abandoned property does not violate the Fourth

Amendment, and whether property has been abandoned “turns upon whether a person

can claim a continuing, legitimate expectation of privacy in the item at issue.” United

States v. Robinson, 390 F.3d 853, 873 (6th Cir. 2004); see Rakas v. Illinois, 439 U.S.

128, 143 (1978); Abel v. United States, 362 U.S. 217, 241 (1960). A legitimate

expectation of privacy exists when a person “has exhibited an actual (subjective)

expectation of privacy” and “the individual’s subjective expectation of privacy is one

that society is prepared to recognize as reasonable.” Smith v. Maryland, 442 U.S. 735,

740 (1979) (internal quotation marks omitted). Nelson had no legitimate expectation of

privacy in the property at issue here. Viewing the evidence, as we must, in the light most

favorable to the Government, see United States v. Couch, 367 F.3d 557, 560 (6th Cir.

2004), the district court properly admitted the gun into evidence.

The ammunition was also properly admitted in evidence because the warrantless

search leading to that evidence was a valid search incident to arrest. The district court

properly concluded that at the point when Officer Massey observed Nelson throw what

Massey thought was a gun into the bushes, he had probable cause to arrest Nelson.

Although Nelson was initially arrested for a state-law offense—resisting a stop and

frisk—different from the felony-gun-possession offense he was subsequently charged

with, the officers had probable cause to arrest him at the time. An arresting officer’s

“subjective reason for making the arrest need not be the criminal offense as to which the

known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

The police had probable cause to arrest and search Nelson based on the circumstances.

Viewing the evidence in the light most favorable to the Government, the district court

properly admitted the ammunition into evidence.
No. 12-5477 United States v. Nelson Page 9

The district court properly rejected Nelson’s proposed jury instruction on police

negligence because Nelson’s proposed jury instruction relied on an insubstantial critique

of the police investigation. “A trial court’s refusal to give a requested jury instruction

is reversible error only if the instruction is (1) correct, (2) not substantially covered by

the actual jury charge, and (3) so important that failure to give it substantially impairs

[the] defendant’s defense.” United States v. Hart, 635 F.3d 850, 854 (6th Cir. 2011)

(citation omitted). Nelson claims that the police were negligent because they failed to

collect the evidence wearing latex gloves or test the gun and ammunition for fingerprints,

and because the police reports contained mistakes and inconsistencies. Even if the

investigation was imperfect, the district court properly concluded that “none of th[e]se

matters rise to the level of the need for an instruction that as a matter of law that those

things are negligence.” The district court appropriately exercised its broad discretion in

crafting jury instructions.

We do not address Nelson’s challenge to the substantive reasonableness of his

sentence because the case will be remanded for a new trial.

The district court’s judgment is vacated, and the case is remanded for

proceedings consistent with this opinion.