United States of America v. Terrell Simpson

United States Court of Appeals
For the Eighth Circuit
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No. 25-1263
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United States of America
Plaintiff - Appellee
v.
Terrell Simpson
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: December 16, 2025
Filed: June 2, 2026
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Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.
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KELLY, Circuit Judge.
Terrell Simpson was convicted after trial on one count of being a felon in
possession of a firearm. He appeals, arguing that the district court erred at trial by
admitting evidence of an anonymous tip. We agree, and therefore reverse, vacate
Simpson’s conviction, and remand.

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I.
On May 10, 2020, Kansas City police received an anonymous tip that Terrell
Simpson, who had been convicted of a felony, was in possession of a gun. Detective
Rorabaugh followed up and found that both Simpson and his wife, Kenya Turner,
had active arrest warrants. The next day, Rorabaugh and his partner went to Turner’s
apartment, where they saw Turner’s car1 leaving with Simpson in the passenger seat.
After following the car for several blocks, Rorabaugh asked a marked police unit to
make a traffic stop. Officers Schoolfield and Votaw then initiated a stop and ordered
Turner and Simpson out of the car.2 As Turner’s car stopped, Schoolfield said,
“Passenger digging.” Because of the tip, the officers considered the stop a “high-
alert car check,” and thus, they gave loud, specific commands to Turner and Simpson
and approached the car with their guns drawn. Turner and Simpson followed the
officers’ instructions, got out of the car, and were both arrested. The officers
searched the car and found a gun inside a purse on the floor of the passenger seat.
Simpson was charged with being a felon in possession of a firearm.
Before trial, Simpson filed a motion in limine to exclude any testimony about
the tip, asserting it was inadmissible hearsay and violated his Sixth Amendment
Confrontation Clause rights. The government opposed the motion, arguing the tip
would not be offered for its truth but to provide context for the tone and manner of
the traffic stop. Simpson responded that neither the propriety of the stop nor the
officers’ conduct in carrying it out was at issue. Simpson also proffered alternative
ways to provide the jury with any necessary context or to eliminate the need to do
so.
The district court denied the motion, finding the tip could be offered as
“context and to give the jury a better understanding of why the stop was conducted
1 The person driving the car was later identified as Turner.
2 The government presented evidence of the traffic stop in the form of dash
camera footage from Schoolfield and Votaw’s police car.

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in the manner in which it was.” Accordingly, the government could say that the
officers received a tip, believed Simpson might be armed, and knew Simpson had
an outstanding warrant for his arrest. Simpson again proposed evidentiary
alternatives, which he asserted met the government’s need to explain the officers’
conduct without having to introduce the tip. The court declined to reconsider its
ruling. The next day, Simpson moved for a mistrial, arguing that admission of the
tip into evidence was unduly prejudicial. The district court denied the motion.
The jury found Simpson guilty. Simpson appeals, arguing admission of the
tip violated his Confrontation Clause rights or, at a minimum, was substantially more
prejudicial than probative. He also contends the government made improper
arguments in closing, depriving him of a fair trial.
II.
A.
We begin with Simpson’s Confrontation Clause challenge, which we review
de novo. United States v. Taylor, 813 F.3d 1139, 1149 (8th Cir. 2016) (citing United
States v. Young, 753 F.3d 757, 772 (8th Cir. 2014)). “The Confrontation Clause bars
admission of a witness’s testimonial hearsay statements unless the witness is
unavailable and the defendant has had a prior opportunity to cross examine him.” Id.
at 1139 (citing United States v. Wright, 739 F.3d 1160, 1170 (8th Cir. 2014)).
“The Sixth Amendment’s Confrontation Clause guarantees a criminal
defendant the right to confront the witnesses against him. The Clause bars the
admission at trial of ‘testimonial statements’ of an absent witness unless she is
‘unavailable to testify, and the defendant ha[s] had a prior opportunity’ to cross-
examine her.” Smith v. Arizona, 602 U.S. 779, 783 (2024) (alteration in original)
(quoting Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). A tip to aid law
enforcement in an investigation “clearly fall[s] within the class of statements
considered testimonial.” United States v. Holmes, 620 F.3d 836, 841 (8th Cir. 2010).

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But Confrontation Clause rights apply only to testimonial hearsay, Smith, 602 U.S.
at 784, “that is, evidence offered to prove the truth of the matter asserted,” Holmes,
620 F.3d at 841.
The government asserts the anonymous tip offered in Simpson’s case was not
hearsay—and thus not covered by the Confrontation Clause—because it was not
offered for its truth. Specifically, the government argues the tip was necessary
background information that “explained why officers acted as they did.” Otherwise,
in the government’s view, the officers’ conduct would likely “defy jurors’
expectations” of a typical traffic stop.
It is true that “out-of-court statements are not hearsay if they are offered ‘to
explain the reasons for or propriety of a police investigation.’” Id. (quoting United
States v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003)). But “[t]his type of evidence
will be allowed into evidence to explain a police investigation . . . only when the
propriety of the investigation is at issue in the trial.” Id. (citing Malik, 345 F.3d at
1001–02). Here, the record does not support a finding that “the propriety of the
investigation” was at issue in Simpson’s trial. Simpson’s defense was that Turner,
not he, possessed the gun found in the purse. Simpson did not challenge the propriety
of the stop, the reasonableness of the officers’ conduct in connection with the stop,
or even the fact of his prior conviction. His only challenge to police conduct
concerned the risks of contamination in the officers’ collection of DNA—conduct
that was unrelated to the reason for the stop or how the officers carried it out. On
this record, the tip was not relevant to its stated purpose. See Fed. R. Evid. 401.
Even if the propriety of the stop had been at issue, the government’s
unwillingness to consider evidentiary alternatives suggests that the tip was, at least
in part, offered for its truth. When a statement “is both permissible background and
highly prejudicial, otherwise inadmissible hearsay, fairness demands that the
government find a way to get the background into evidence without the hearsay.”
United States v. Alonzo, 991 F.2d 1422, 1426–27 (8th Cir. 1993). Here, there were
ways to provide the jury with background information—or to avoid the need to

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provide background information altogether—without introducing hearsay evidence.
Simpson proposed at least two alternatives. One proposal included a shortened
version of the dash cam video that showed Simpson’s movements when he was still
in the car—movements the officer characterized as “digging”— but did not include
audio of the officers’ commands or video of them approaching with guns drawn.
With this version, the jury would see none of the “expectation-defying” evidence,
and thus there would be no need to need to “explain why officers acted as they did.”
Another proposal was to allow the government to play the entire dash cam
video, but to limit the type of testimony allowed to explain the tone and manner of
the traffic stop: the officers could testify either that they believed someone in the car
was armed or that they knew the driver and passenger both had arrest warrants. With
this option, the jury would see the entire traffic stop and be provided an explanation
for why the officers conducted it as they did. Both of the proposed alternatives
provided the background information the government asserted was necessary, and
neither required admission of the tip.
The government disagrees, asserting the alternatives were insufficient to meet
its evidentiary purpose. On appeal, the government argues:
Simpson’s suggestion . . . that officers could have testified that they
“received information that one of the car’s occupants might be armed”
. . . [is] misleading because officers did not “receive information that
one of the car’s occupants might be armed” but rather received
information that Simpson might be armed.
Simpson’s defense at trial was that the woman possessed the firearm,
and . . . bowdlerizing the facts to incriminate her would have made that
defense more plausible . . . .
Yet if the tip was offered solely for the non-hearsay purpose of explaining the
officers’ conduct during the traffic stop, it would make no difference whether the tip
specifically identified Simpson or Turner as possibly being armed—the stop would
presumably still have been “high risk.” In this way, the government’s argument on

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appeal belies the assertion that the tip was offered merely as background
information. See United States v. Blake, 107 F.3d 651, 653 (8th Cir. 1997) (“Where
the only possible relevance of the out-of-court statement is to show the defendant
committed the act he has been charged with, the statement is not properly admissible
for a non-hearsay purpose.” (citing United States v. Azure, 845 F.2d 1503, 1507 (8th
Cir. 1988))).
We conclude admission of the tip violated Simpson’s rights under the
Confrontation Clause.
B.
Next, we must determine whether this error was harmless. “A harmless-error
analysis in the context of a [C]onfrontation [C]lause violation requires us to
‘examine the other evidence adduced at trial and determine whether it appears
beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.’” United States v. Mueller, 661 F.3d 338, 349–50 (8th Cir. 2011)
(quoting Barrett v. Acevedo, 169 F.3d 1155, 1164 (8th Cir. 1999)). We consider
several factors, including the importance of the disputed testimony, whether the
testimony was otherwise cumulative, and the overall strength of the government’s
case. Id. at 350.
The government argues any error was harmless because its case against
Simpson was “overwhelming.” It points to evidence that the gun was found in a
purse on the floor where Simpson had been sitting and an officer’s testimony that
Simpson had been “digging” when the car was pulled over, suggesting Simpson was
concealing contraband. The government also highlights its evidence that Simpson’s
DNA was on the trigger and trigger guard of the gun, and when interrogated about
the gun, Simpson said it was in the purse before anyone told him where the gun had
been found.

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None of this evidence, however, went unchallenged. As to the “digging”
testimony, Simpson characterized the government’s assertion that he was hiding
contraband as nearly physically impossible. He offered the jury multiple alternative
interpretations of his movements in the car, pointing out that the dash cam video
shows that Simpson never bends forward but rather looks from side to side, and he
gets out of the car with a water bottle in his hand. The video does not blatantly
contradict either party’s characterization, and the jurors had the opportunity to see
the video to decide for themselves whose description was more plausible.
Simpson also challenged the reliability of the DNA collection and, more
significantly, he challenged how long the DNA had been on the gun. To find
Simpson guilty, the jury had to find that he possessed the firearm “on or about May
11, 2020”—the date of the traffic stop. There was no evidence, however, to indicate
when the DNA landed on the gun or how long it could have remained there.3 As for
the location of the gun, Simpson pointed out that it was found at the bottom of a
“very deep” purse. And while the jury heard that shortly after the stop Simpson
acknowledged there was a gun in the purse, they also heard his explanation that he
knew where the gun was found because the officers were discussing it in front of
him before he was interrogated.
On this record, the “overall strength of the prosecution’s case” was not so
overwhelming that we can say “beyond a reasonable doubt that [the admission of
testimony about the tip] did not contribute to the verdict obtained.” Mueller, 661
3 We note that the jury submitted the following question to the court during
deliberation:
In Instruction No. 19, it states that possession must take place at a given
time. Is that time considered to be the time of the traffic stop or any
given time?
The tip was the only evidence offered at trial that Simpson possessed a firearm at
any time other than the traffic stop.

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F.3d at 349. Trial in this case lasted only two days, including jury selection, and the
jury heard about the tip multiple times. The government mentioned it several times
in its opening statement, telling the jury that: law enforcement received a tip
“indicating that the defendant was armed”; an officer followed up on the tip “because
of the specific nature of it naming the defendant, saying he’s possibly armed”;
additional officers were “recruited”; and officers were told “to be very wary because
they believed this defendant may be armed.” Rorabaugh testified about the tip,
explaining why he “followed up” and tried to locate Simpson. And so did
Schoolfield, who assisted in the traffic stop.4 The government again reminded the
jury about the tip “that the defendant was armed” in its closing argument.
As the government points out, the district court gave two instructions on the
tip—one during Rorabaugh’s testimony and one in final jury instructions—both of
which told the jury that the tip could only be considered “for the limited purpose of
understanding why law enforcement officers acted the way they did,” and could not
be used as evidence that Simpson possessed a gun. But Simpson was on trial for
being a felon in possession of a firearm, and the only disputed issue was possession:
whether Simpson knowingly possessed a firearm on May 11, 2020. See United
States v. Nelson, 725 F.3d 615, 622 (6th Cir. 2013) (“[T]he 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 [defendant] from
prejudice.”). The erroneously admitted evidence went directly to the one disputed
element of the offense, and it was the only testimony the jury heard that Simpson
was in actual possession of a firearm. Moreover, Simpson had not challenged the
propriety of the officers’ conduct, which was the only proffered reason for the tip’s
admission. Under these circumstances, the resulting risk of prejudice was simply too
great to be overcome by an instruction. See Bruton v. United States, 391 U.S. 123,
135 (1968) (“[T]here are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of failure so vital to the
4 For example, the government asked Schoolfield: “Did Detective Rorabaugh
specifically tell you that there was an individual named Terrell Simpson who was
potentially armed?”

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defendant, that the practical and human limitations of the jury system cannot be
ignored.”).
Because the error here was not harmless beyond a reasonable doubt, we vacate
Simpson’s conviction.
III.
Simpson also argues that the government made improper comments in closing
argument, including its reference to Simpson’s theory of defense as “cockamamie”
and “ridiculous.” The government concluded its rebuttal argument by telling the
jury, “I assure you, based on the evidence that has been presented in this case, when
you find him guilty, you won’t be telling him anything[] that he doesn’t already
know.” As a result, Simpson asserts, he was deprived of a fair trial. Without
countenancing the comments, we decline to address Simpson’s argument because
we otherwise vacate his conviction and remand to the district court.
IV.
We vacate Simpson’s conviction and remand to the district court for further
proceedings.
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