FILED

United States Court of Appeals

Tenth Circuit

August 4, 2009

Elisabeth A. Shumaker

Clerk of Court PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

DANIEL COLLINS, 

 Defendant–Appellant.

No. 08-3119

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 07-CR-10159-MLB-1)

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for

Defendant–Appellant.

Donald Oakley, Assistant United States Attorney (Marietta Parker, Acting United

States Attorney, and Matthew T. Treaster, Assistant United States Attorney, with

him on the briefs), Wichita, Kansas, for Plaintiff–Appellee.

Before LUCERO, EBEL, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

A jury convicted Daniel Collins of maliciously damaging a building by

means of an explosive in violation of 18 U.S.C. §§ 844(i) and 2. He was
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sentenced to 60 months’ imprisonment and two years’ supervised release. At

trial, the district court overruled Collins’ hearsay and prejudice objections to the

admission of a two hour and twenty minute audio recording of investigators

interrogating him the day of the crime. On appeal, he argues that the admission

of this evidence was in error and seeks a new trial. However, we need not decide

if the district court erred in admitting the entire recording because any such error

was harmless on this record. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

I

On August 17, 2007, Collins and two acquaintances, Antonio Ray and

Nathan Gunter, acquired three explosives. They then detonated those explosives

at a Wichita, Kansas school and two apartment buildings, including the

Kingsborough Apartments. Collins, Ray, and Gunter were arrested shortly after

the explosions, and Collins was subsequently charged with two counts of

maliciously damaging the apartment buildings by means of an explosive in

violation of 18 U.S.C. §§ 844(i) and 2 and one count of knowingly stealing

explosive materials that have moved in interstate commerce in violation of 18

U.S.C. §§ 844(k) and 2.

At trial, several eyewitnesses testified to Collins’ involvement in the

charged incidents. Ray, who had pled guilty to lesser charges, testified that

Gunter drove him and Collins in a white SUV to each of the locations. Ray
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explained that at the Kingsborough Apartments, he held a stairwell door open

while Collins placed a lit explosive inside. 

Several residents of the Kingsborough Apartments also testified. Michael

Vickers stated that he saw two males near a door to the building, one with a

lighter complexion than the other. He said that the lighter complected male held

the door open while the other threw something inside. Vickers saw a trail of

smoke and then the explosion occurred. At trial, Vickers identified Collins as the

darker complected male he had seen on August 17. Tina Disabatino also testified

to seeing two males in the vicinity of the Kingsborough buildings moments before

and after the explosion, and she too identified Collins as one of the individuals. 

Angela Chandler testified to seeing a white SUV immediately prior to the

explosion and two males get into it immediately after the explosion, identifying

Collins as one of those two men. Both Vickers and Chandler called 9-1-1, and

Chandler provided police with a license plate number that partially matched the

plate on the white SUV stopped by police shortly thereafter.

When the SUV was stopped, Gunter was driving, Ray was in the front

passenger seat, and Collins was in the rear. At the scene, Officer Daniel Brown

of the Wichita Police Department (“WPD”) handcuffed Collins and searched his

pockets, finding a lighter. Officer Brown testified to this at trial, and the

government also called a number of other police officers and agents of the Bureau

of Alcohol, Tobacco, Firearms and Explosives (“ATF”), who testified to the
1

 The recording itself was missing approximately the last hour of the first

session and the final ten minutes of the second session because Hamilton’s digital

recorder ran out of space.

2

 The court did grant two more specific objections and redacted brief

portions of the recording revealing aspects of Collins’ juvenile history.

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course of the investigation and the explosives involved.

After the ATF agents, the government called WPD Detective Sarah

Hamilton. Hamilton explained that she and ATF Special Agent Greg Heiert

interviewed Collins the day he was arrested for approximately three and a half

hours, with an hour and a half break in the middle. As part of Hamilton’s

testimony, the government played an audio recording of this interview for the

jury.1

 Before Hamilton testified, Collins objected to introduction of the

unredacted recording, arguing that seventy to eighty percent of the dialogue

consisted of inadmissible hearsay statements made by Hamilton and Heiert. He

objected further that the recording was unduly prejudicial because it contained

many ad hominem attacks on Collins. Although Collins’ counsel acknowledged

that Collins’ own statements were not hearsay, he contended that the bulk of the

recording did not consist of such statements. 

Collins’ objections on these grounds were overruled.2

 On the theory that

the officers’ statements provided context for Collins’ statements, the district court

allowed the government to play the recording. Before it was played, however, the

court admonished the jury:
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I want to caution you . . . . [Y]ou’ll hear that the officers said to the

Defendant that they knew what the evidence—what had happened,

they had talked to other people, I don’t know what all; but in total, in

total, everything the officers say to the Defendant on this tape is not

evidence. So you can hear it, you have to hear it to place everything

in context, but if the officers say, for example, and I don’t know that

they do, but if they say that we’ve talked to Antonio Ray and he told

us, that’s not evidence. You must not consider it as evidence. The

only evidence is the statement, statements of the Defendant.

As Collins accurately characterizes, significant portions of the recording do

not reflect Collins’ substantive statements. On more than one occasion, Hamilton

speaks at length without attempting to prompt a response from Collins. One

example of such an soliloquy:

[Hamilton]: OK; here’s the thing[. W]e were in here talking to you

for a long time earlier alright and we[—]I told you what we were

gonna do[.] [W]e’re gonna go out[,] we’re gonna talk to the other

detectives who are um going through your all[’]s car OK, who have

been talkin to the other folks that you were arrested with today and

you know what, your story’s a heap of [expletive] OK, so we’re back

in here again because your story is the worst of all OK and we’re just

gonna lay it out like it is OK[. Y]ou’re not tellin us the whole truth

OK, and you need ta start[.] [O]K like we said earlier, there’s parts

to it that are true but you’re not tellin us everything and you know

what[,] the only person that hurt[—]the only person that that hurts is

you; I know that there’s things on the back seat of that car OK, when

you when you guys got picked up today remember that you do,

you’re shacking [sic] your head yes, you remember that[.]

[Collins]: Uh huh[.]

At other times, the statements by the officers are shorter, but consist of the 

officers representing the state of the evidence:

[Heiert]: There’s four people that put you at, at those scenes
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[Hamilton]: Who have never seen you before in their entire life but

they remember you because you just blew some part of their house

up[.]

[Collins]: Four people remember me at the scene[?]

[Hamilton]: Uh huh[.]

[Collins]: I didn’t even get out of the car you know[.]

[Hamilton]: Yes you did[.]

More than once, Hamilton accused Collins of sheer callousness, such as:

[Hamilton]: But it matters to you in the long run because it affects

how you go through this process here[. P]eople need to know why

you did something and how OK, the big thing is why are you so cold

and heartless that you can sit here and say that I don’t care that there

were babies sleeping next door to that hallway, they’re not my

babies[,] I don’t live there[. B]y you not sayin something and not

saying why you did something[—]that’s the big question out there

and you know what[.]

Although the recording was rife with such exchanges, it also contained

many occasions when Collins answered questions and spoke at length. Near the

end of the second session, Collins admitted involvement in the Kingsborough

Apartments incident and admitted that he had lied earlier in the interview. 

Collins did not object to the jury hearing these latter admissions.

When the court instructed the jury prior to deliberations, it included

Instruction No. 22 regarding the recording:

Evidence has been presented about a statement attributed to the

defendant alleged to have been made after the commission of the

crimes charged in this case but not made in court. Such evidence

should always be considered by you with caution and weighed with
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care. . . . 

. . . Statements of law enforcement officers made at the time of

questioning are not to be considered for their truth, but only as a

consideration of how the defendant’s statement was given.

Collins was convicted of maliciously damaging the Kingsborough Apartments by

means of an explosive but acquitted of the other two charges. He timely

appealed.

II

On appeal, Collins challenges only the admission of the audio recording. 

He contends first that the district court erred in allowing the jury to hear countless

hearsay statements contained in the first two hours of the recording. We review

the admission of evidence at trial for abuse of discretion. United States v. Chavez,

229 F.3d 946, 950 (10th Cir. 2000). “Because hearsay determinations are

particularly fact and case specific, our review of those decisions is especially

deferential.” Id. (quotation omitted). Further, “[t]his court applies a harmless

error standard when reviewing trial courts’ rulings on hearsay objections resting

solely on the Federal Rules of Evidence.” United States v. Jones, 44 F.3d 860,

873 (10th Cir. 1995) (citation omitted). “A harmless error is one that does not

have a substantial influence on the outcome of the trial; nor does it leave one in

grave doubt as to whether it had such effect.” Id. (citation omitted).

“‘Hearsay’ is 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
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matter asserted.” Fed. R. Evid. 801(c). Because a party’s own out of court

statements offered against that party are not hearsay, Fed. R. Evid. 801(d)(2)(A),

we are confronted with a single exhibit that contains numerous statements that are

indisputably not hearsay—those made by Collins—and other statements made by

the officers that arguably are hearsay. Contending that Hamilton’s and Heiert’s

statements are not hearsay, the government relies on the malleable notion that an

interviewer’s statements are offered to provide context for the interviewee’s

answers, rather than for the truth of the matter asserted. See United States v.

Gajo, 290 F.3d 922, 930 (7th Cir. 2002) (collecting cases supporting the

proposition that “[i]t is well settled that [admitting evidence of both sides of a

conversation] is appropriate because statements are not hearsay to the extent they

are offered for context and not for . . . the truth of the matter asserted” (citations

omitted)).

We are skeptical of the government’s argument that all of Hamilton’s and

Heiert’s statements in the recording provide meaningful context for Collins’

statements. Ad hominem attacks, accusations of lying, and general posturing may

be standard in police interrogations, but they have little evidentiary value unless

the government intended for the jury to believe the truth of those statements. 

Perhaps more problematically, Hamilton’s and Heiert’s statements in the recording

unequivocally corroborated evidence that had just been presented to the jury and

vouched for the credibility of individuals who had just testified. Invoking the
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word “context” does not permit an end-run around the hearsay rules such that the

government may smuggle into evidence all interviewer statements. We view such

evidence with a particularly jaundiced eye when, as here, the officers’ statements

regularly overwhelm the defendant’s.

Nonetheless, we are mindful that the district court faced an unenviable task

in deciding if and how to redact a lengthy recording in which both problematic and

perfectly admissible statements are scattered throughout. See Chavez, 229 F.3d at

950. But we need not decide whether it was error to admit the entire recording

because we conclude that if it was error, the error was harmless. See Jones, 44

F.3d at 874 (“Even if the district court erroneously admitted testimony of the

contents of [the] conversation, we nonetheless conclude that the admission of this

testimony was harmless error.”). Given the strength of the evidence against

Collins on the count of conviction, we conclude that Hamilton’s and Heiert’s

statements did not have a substantial influence on the outcome of the trial. See id.

at 873.

Collins was convicted only for the explosion at Kingsborough Apartments. 

He concedes that his own statements heard in the recording were admissible nonhearsay. In those statements, he admits involvement in that incident and admits to

lying earlier in the interview when he said he remained in the car. Even without

the remainder of the recording, Collins’ admissions alone provide strong evidence

of guilt. Moreover, two eyewitnesses, including Collins’ codefendant, testified to
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seeing Collins throw an explosive into the stairwell, and a police officer testified

to finding a lighter on his person when he was arrested. Two other eyewitnesses

testified that they saw Collins walking back to the car after the explosion,

providing strong evidence of aiding or abetting. See 18 U.S.C. § 2(a). All four of

these witnesses testified that Collins was laughing at the time. We also consider

that the jury was instructed not to consider the statements of the officers as

evidence. See United States v. Lauder, 409 F.3d 1254, 1262 (10th Cir. 2005)

(relying in part on curative instruction to render error harmless). Taking into

account all of the evidence against Collins and the presumption that juries follow

curative instructions, United States v. Jones, 530 F.3d 1292, 1303 (10th Cir.

2008), we conclude that admission of Hamilton’s and Heiert’s statements as part

of the recording, if error, was harmless.

III

Collins also argues that the admission of the entirety of the recording was

substantially more prejudicial than probative in violation of Federal Rule of

Evidence 403. To this end, Collins contends that only his admissions in the

concluding minutes of the recording were relevant, and that the rest of the

recording was both irrelevant and inflammatory because Hamilton and Heiert

referred to hypothetical injuries and improperly challenged Collins’ veracity and

humanity. As with hearsay, error in the admission of unduly prejudicial evidence

is susceptible to harmless error. See United States v. Smith, 534 F.3d 1211, 1220
3

 Before this court, Collins also argues that the admission of unduly

prejudicial evidence violates his due process rights under the Fifth Amendment. 

Because he raises this argument for the first time on appeal, we decline to decide

it. See United States v. Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007) (“[We]

exercise [our] discretion to hear issues not raised below only in the most unusual

circumstances.” (quotation omitted)). 

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(10th Cir. 2008) (declining to determine whether a district court erred under Rule

403 because any possible error was harmless).

We held in Part II that even if Hamilton’s and Heiert’s statements were

hearsay, their admission did not have a substantial influence on the outcome of the

trial. Because the inflammatory statements cited by Collins are a subset of those

he argues are hearsay, it follows that the admission of such statements was also

harmless under Rule 403.3

IV

AFFIRMED.