United States v. Gaines

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 27, 2026
• Docket: 25-5000
• Status: Unpublished

Opinion

Appellate Case: 25-5000 Document: 44-1 Date Filed: 03/27/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 27, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-5000 (D.C. No. 4:21-CR-00489-JFH-1) CREGG LENARD GAINES, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, CARSON, and ROSSMAN, Circuit Judges. _________________________________

Even if a court commits an error of constitutional dimension that the defendant

preserves for appeal, we may affirm if the government can prove the error is harmless

beyond a reasonable doubt.

Here, the district court admitted a video into evidence containing statements

from an adverse witness who was not before the court. Defendant requested an

opportunity to question the adverse witness. According to Defendant, the district

court, in rejecting Defendant’s request, failed to balance Defendant’s constitutionally

guaranteed right to confrontation against the government’s good cause for denying it.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-5000 Document: 44-1 Date Filed: 03/27/2026 Page: 2

We assume the district court erred by admitting the exhibit without engaging in the

proper balancing of the interests. But ultimately, any error did not substantially

impact the outcome because the district court would have reached the same

conclusion without admitting or considering the testimonial statements in the video.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

After accepting a guilty plea from Defendant Cregg Gaines, the district court

sentenced Defendant to a term of imprisonment followed by three years’ supervised

release

During Defendant’s term of supervised release, multiple people called law

enforcement about a disturbance in an apartment complex parking lot involving three

males yelling at each other. Law enforcement learned that one person had a gun and

was pointing it at one of the others. Callers also informed the officers that they heard

gunshots and believed someone was shot. On scene, officers identified Eric Williams

as the gunshot victim. Williams was uncooperative, but when officers placed

Defendant next to Williams, he became upset and identified Defendant as his shooter.

Officers spoke with several witnesses on scene who also identified Defendant as the

shooter and then detained Defendant. Officers located spent shell casings, an empty

ammunition box, an empty gun holster in Defendant’s truck, and firearm accessories

and cleaning equipment in Defendant’s apartment. Officers did not locate the

firearm. Id.

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Defendant’s probation officer filed a petition to revoke his supervised release.

Probation alleged that Defendant committed three violations. But only two of these

alleged violations are relevant to this appeal: (1) committing a new crime (the

shooting); and (2) possessing a firearm. Defendant denied committing the violations.

At the revocation hearing, the government called two witnesses. First, it

called Danielle Hunt—a probation officer who the probation office assigned to

Defendant three days after the shooting. She testified that she spoke with Defendant

about the shooting incident. Defendant admitted to drinking (although he denied

being intoxicated) and getting into an altercation but denied possessing a firearm or

shooting anyone. He also said that the gun holster and firearm cleaning equipment

predated his original conviction.

Second, the government called Officer Omar Awad. He responded to the

shooting after an officer provided an initial report informing him that an altercation

had occurred and that someone shot another person in the leg. The government asked

whether Awad knew the people involved in the altercation. Awad responded Cregg

Gaines and Eric Williams. The government then asked, “in that initial report was

there any indication about who was the victim and who was the shooter?” Defendant

did not object to this question, and Awad answered, “[t]hey said Cregg was in

custody and Eric Williams was transported to the hospital.” Awad testified that law

enforcement on the scene informed him that they had recovered shell casings in a

parking lot at the scene, and that his job was to draft a search warrant for Defendant’s

apartment. After conducting a search of Defendant’s apartment and truck, Awad

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testified that officers found two iron sights, a wire brush commonly used for cleaning

firearms, and a holster for a “smaller pistol.” He also testified that the shell casings

found at the scene were .25 caliber casings and that officers found an empty box of

.25 ammunition below the stairs outside Defendant’s apartment. Awad did not

discuss the altercation with Defendant because Defendant was intoxicated, and he did

not discuss the altercation with Williams who was at the hospital when Awad arrived

on scene.

Awad testified that he tried several times to talk to Williams, but that Williams

would not cooperate. At one point, Williams’ wife called the department upset that

Defendant had not been arrested for the shooting. An officer informed her that

Williams “did not want to be a victim and cooperate with the investigation.” She told

the officer that “he would cooperate” and sent two videos from their Ring doorbell

camera to law enforcement.

The first of these videos became Exhibit 1 at the hearing. Exhibit 1 shows a

person—who Awad identified as Defendant—pacing outside of Williams’ door at

6:55 p.m. on October 19, 2024. Defendant is holding “something small and silver” in

his right hand, but Awad admits the video is not clear enough to say definitively what

Defendant is holding.

The second Ring doorbell video became Exhibit 2. This video shows an

individual—who Awad identified as Williams—stepping out of a car and walking

toward another individual—who Awad identified as Defendant—at 7:05 p.m.

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Defendant’s right hand extends and lifts up, and Williams says “[a]re you going to

shoot me, cuz?”

Exhibit 3 was a seven-second clip of body camera footage that Awad

reviewed. The government used this video so Awad could clearly identify Defendant

on the night of the shooting.

Exhibit 4 is a roughly four-minute-long video with a timestamp of 7:18 p.m.

In the video, Williams is handcuffed and sitting on a curb while officers treat the

gunshot wound on his leg. During the encounter, officers bring Defendant to the

same curb and sit him near Williams. Williams then makes statements incriminating

Defendant such as, “You gonna use your little-ass gun! Why didn’t you shoot me in

my face, cuz?” Williams also says, “Now you’re bringing this motherfucker around

me . . . . Y’all don’t bring him around—” and spits towards Defendant before

continuing “y’all gonna bring him around me! When he just shot me? Never bring

him around me!” Defendant does not react to Williams’ accusations.

Before the district court admitted Exhibit 4, Defendant objected. Defendant

invoked Federal Rule of Criminal Procedure 32.1(b)(2)(C), which states that a

defendant in a revocation hearing may “question any adverse witness unless the court

determines that the interest of justice does not require the witness to appear.” The

government argued that Rule 32.1(b)(2)(C) did not bar admission of Exhibit 4

because the Rule permits courts to admit evidence after weighing “the interest of

justice,” and that the statements are not hearsay because they fall under the excited

utterance exception to hearsay.

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The district court agreed with the government that the “interest of justice”

would allow the court to review the video. The district court referenced that

Williams made the statements shortly after the event, that they would be admissible

at trial, and that they also would likely fall under the hearsay exception for present

sense impressions. Defendant clarified that he was not just objecting to the hearsay

component but also invoking his constitutional right to confront the witness. The

district court acknowledged that it understood this and overruled the objection.

After hearing the testimony and witnessing the government’s video evidence,

the district court found that Defendant violated the conditions of his supervised

release by a preponderance of the evidence. First, the district court stated that the

iron sights found in Defendant’s apartment, the wire brush, and the holster do not

“win the day,” but that they “start[] to add up at this point and make[] you wonder.”

The district court then stated, as to Exhibits 1 and 2, that evidence shows Defendant

approaching Williams’ apartment, holding something in his hand, and then raising

the item in his hand in a way that you would if you were pointing a firearm at

someone. The district court then explained that “[i]t becomes pretty telling” that

Defendant is pointing something at Williams and “Mr. Williams ends up shot that

night.” The district court ended with Exhibit 4, stating that “[t]he fact that

Mr. Williams is saying . . . that [Defendant] shot him, and [Defendant] says nothing

is odd to me.” The court went on: “[i]t’s clear to me well beyond a preponderance of

the evidence that [Defendant] violated the terms and conditions of his supervision

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and he shot Mr. Williams. I mean what are we doing here, [Defendant]? You must

think the court is awfully foolish.”

The district court revoked Defendant’s supervised release and sentenced him

to 30 months’ imprisonment. Defendant appealed.

II.

A.

Defendant challenges the district court’s revocation determination. The

government’s burden of proof for a supervised release violation is preponderance of

the evidence. 18 U.S.C. § 3583(e)(3); see, e.g., United States v. Adams, 888 F.3d

1134, 1138 (10th Cir. 2018). “We review the district court’s decision to revoke

supervised release for abuse of discretion.” United States v. Jones, 818 F.3d 1091,

1097 (10th Cir. 2016) (quoting United States v. LeCompte, 800 F.3d 1209, 1215

(10th Cir. 2015)). Abuse of discretion is also the applicable standard when we

review a district court’s decision to allow testimony during a revocation hearing. See

United States v. Faunce, 66 F.4th 1244, 1257 (10th Cir. 2023) (citing United States v.

Henry, 852 F.3d 1204, 1207 (10th Cir. 2017)). A court abuses its discretion where its

decision is “arbitrary or capricious or results in a manifestly unreasonable judgment.”

Id. (citing United States v. Weidner, 437 F.3d 1023, 1042 (10th Cir. 2006)). “Legal

questions related to revocation of supervised release are reviewed de novo,” and if

the district court commits a legal error, then the district court “necessarily abuses its

discretion.” Jones, 818 F.3d at 1097.

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B.

Defendant raises just one issue on appeal: whether the district court erred by

admitting Exhibit 4 against his Rule 32.1(b)(2)(C) objection. Rule 32.1(b)(2)(C)

entitles releasees to “an opportunity to . . . question any adverse witness unless the

court determines that the interest of justice does not require the witness to appear.”

The advisory committee notes further explain that, when a releasee asserts the right

to cross-examine an adverse witness, “[t]he court is to balance the person’s interest in

the constitutionally guaranteed right to confrontation against the government’s good

cause for denying it.” Jones, 818 F.3d at 1098 (quoting Rule 32.1 advisory

committee’s notes to 2002 amendment). For purposes of this appeal, we assume that

the district court did not adequately balance these interests and erred in admitting

Exhibit 4 in its entirety.

But even if the district court abused its discretion, we “disregard preserved

trial errors that do not affect substantial rights.” Jones, 818 F.3d at 1101 (citing

28 U.S.C. § 2111; Fed. R. Crim. P. 52(a)). We reverse constitutional errors “unless

the [g]overnment can prove harmlessness beyond a reasonable doubt.” 1 Id. (citing

Chapman v. State of Cal., 386 U.S. 18, 24 (1967)). But we note that unlike the

government’s beyond a reasonable doubt burden of proof for a criminal conviction,

1 We have not addressed whether an error in the application of Rule 32.1(b)(2)(C) is constitutional or nonconstitutional. And we need not do so in this case. Even assuming error in balancing the interests, and assuming that error was constitutional in nature, the district court’s consideration of Exhibit 4 was harmless beyond a reasonable doubt. 8 Appellate Case: 25-5000 Document: 44-1 Date Filed: 03/27/2026 Page: 9

the burden of proof for a supervised release violation is preponderance of the

evidence. 18 U.S.C. § 3583(e)(3).

Thus, to establish harmless error for a constitutional error, the Government

here needed to show beyond a reasonable doubt only that, absent Exhibit 4, the

district court still would have found by a preponderance that the evidence supported

revocation of Mr. Gaines’s supervised release. We conclude that if the district court

would not have admitted and considered Exhibit 4, it still would have reached the

same result beyond a reasonable doubt. Considering the record evidence in its

entirety, the district court knew that officers on the scene briefed Awad and told him

that the shooting involved Defendant and Williams and that Defendant was in

custody and Williams was in the hospital—inferring that Defendant was the shooter.

The district court also knew that officers located spent .25 caliber shell casings and

an empty .25 caliber ammunition box at the scene, as well as an empty holster for a

“smaller pistol” in Defendant’s truck. They also found firearm accessories and

cleaning equipment in Defendant’s apartment. Exhibit 1 showed a video of

Defendant pacing with a silver object. Exhibit 2 showed a video of Defendant

pointing his arm at Williams and Williams asking Defendant if he was going to shoot

him. Exhibit 3 clearly identified Defendant at the scene.

At the hearing, the district court considered all the evidence that law

enforcement found in Defendant’s truck and Defendant’s apartment. The court said

that although this evidence alone did not “win the day,” it “start[s] to add up at this

point and makes one wonder.” The district court then considered the videos from

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Exhibits 1 and 2. The district court said Defendant was outside of Williams’

apartment holding an item that looked like a gun, that the two had a verbal

confrontation, and that Defendant raised his hand as one would point a firearm at

someone. At this point, the district court said, “[i]t becomes pretty telling to me that

he has the motion and indicators that he’s pointing something at Mr. Williams.

Lo[] and behold Mr. Williams ends up shot that night.” The district court did not

consider Exhibit 4 until after making these statements. And the district court knew,

without Exhibit 4, that officers on the scene told Awad that Defendant was in custody

for the shooting incident and that Williams, the shooting victim, was in the hospital.

Taken as a whole, this evidence provides a basis for the district court, without

considering Exhibit 4, to conclude that Defendant violated the terms of his

supervised release by shooting Williams. 2

The district court would have made the same decision without admitting or

considering the testimonial statements in the video of Williams exclaiming that

Defendant shot him.

2 The Confrontation Clause requires a district court to exclude only “testimonial” statements. Crawford v. Washington, 541 U.S. 36, 68 (2004). For purposes of addressing Defendant’s argument, we assume the district court erred by admitting the testimonial statements in Exhibit 4. But, even without relying on the testimonial statements in Exhibit 4, the recording suggests Defendant shot Williams. The video shows Defendant and Williams together after the shooting with Williams having an injured leg. This visual depiction creates a permissible inference that Williams was the person shot and that Defendant shot him without considering Williams’ testimonial statements. 10 Appellate Case: 25-5000 Document: 44-1 Date Filed: 03/27/2026 Page: 11

So, we conclude that any error in admitting and considering Exhibit 4 was

harmless beyond a reasonable doubt.

AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge