United States v. Rahman Fulton

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-1513

_____________

UNITED STATES OF AMERICA

v.

RAHMAN FULTON,

Appellant

_____________

Appeal from the United States District Court for the District

of New Jersey (D.N.J. No. 2-13-cr-00261-001).

District Court Judge: Honorable Stanley R. Chesler

_____________

Argued: February 29, 2016

Before: McKEE, Chief Judge, SMITH and HARDIMAN,

Circuit Judges

(Filed: September 19, 2016)

_____________

JOHN F. ROMANO, Assistant U.S. Attorney, ARGUED

Paul J. Fishman, United States Attorney

Mark E. Coyne, Esq.

970 Broad Street

Newark, New Jersey 07102

Counsel for Appellee

LOUISE ARKEL, Research and Writing Specialist,

ARGUED

Carol Gillen, Assistant Federal Public Defender

K. Anthony Thomas, Assistant Federal Public Defender

1002 Broad Street

Newark, New Jersey 07102

Counsel for Appellant Rahman Fulton

_____________

OPINION OF THE COURT

_____________

MCKEE, Chief Judge.

Rahman Fulton appeals his convictions for bank

robbery and related offenses. He argues that the prosecution

presented improper lay and expert witness testimony as well

as misrepresented a key expert’s testimony during its closing

argument. Although we agree with Fulton that the district

court improperly admitted certain testimony as lay witness

testimony, we conclude that the error was harmless. We also

conclude that the prosecution neither presented improper

expert testimony nor misrepresented the testimony of its

expert during its closing. Accordingly, we will affirm the

district court’s judgment of sentence.1

I.

A. The Robbery

On May 25, 2012, a large man who appeared to be

wearing multiple layers of clothing entered the PNC Bank in

North Randolph, Pennsylvania carrying a gun.2 He ordered

everyone to the ground and demanded money from the

tellers’ second drawers.3 Two PNC employees quickly

handed him two stacks of cash, one of which contained a

concealed Global Positioning System tracking device.4 The

robber’s face was completely covered by a ski mask.5 The

1

The district court had jurisdiction pursuant to 18 U.S.C. §

3231. This Court has jurisdiction under 28 U.S.C. § 1291.

2

J.A. 51-55 (Robin Hunt, PNC Bank employee); 74-75, 78,

80 (Carol Viola, PNC Bank employee); 956-59 (Cynthia

Womack, PNC Bank employee).

3

J.A. 52 (Hunt), 957 (Womack).

4

J.A. 52-53 (Hunt); 957-58 (Womack).

5

J.A. 54 (Hunt testifying he wore “[f]ully covered mask,

covered down [the] neck, had a s[w]eater on, like a dark-

2

robber’s height was estimated as being anywhere from 6 feet

to 6 foot 3 inches.6 One employee described him as having a

“medium build” and being “solid,” but admitted she “couldn’t

really totally tell [if he was] muscular or not because the way

[he] was covered.”7 She estimated his weight at 220 or 230

pounds.8 Another employee described him as “a husky man,

built” and “not necessarily fat but, you know, muscular.”9 She

said it was hard to tell his build because of his bulky

clothing.10 The robbery occurred at 4:08 p.m., and lasted a

matter of minutes.11

The GPS device hidden inside the stack of bills

activated as soon as it was removed from the teller’s drawer.12

After the robber fled, the GPS device quickly led law

enforcement officers to the neighboring town of Victory

Gardens.13 Within minutes, dozens of police officers swarmed

the area.14 The signals from the GPS then directed police to a

building at 1 Jane Avenue.15 When police arrived at that

location, they discovered fragments of the GPS in the

colored sweater and like the mask and even had gloves on.”);

959 (Womack describing the robber as “entirely covered in

black clothing”).

6

J.A. 55 (Hunt estimating 6’ to 6’3”); 80 (Viola estimating he

was about 6’); 959 (Womack estimating 6’ to 6’2”).

7

J.A. 55 (Hunt).

8

J.A. 55 (Hunt).

9

Id. at 80 (Viola).

10

J.A. 80 (Viola).

11

J.A. 98.

12

J.A. 92 (Edward Farrington, PNC Bank employee); J.A.

614 (Lieutenant Stephen Wilson).

13

J.A. 617 (Lieutenant Wilson).

14

J.A. 408, 410 (Detective Thomas Laird) (testifying that

approximately 20-25 police vehicles responded from

neighboring towns); 746 ((Lieutenant Jeffrey Gomez))

(testifying that approximately 20-30 police vehicles

responded).

15

Pursuant to court policy, in this opinion we do not list the

actual addresses involved in this case. J.A. 502-03 (Sergeant

Carl LeMarble); 618 (Lieutenant Wilson) (radio

communications indicated the device “was signaling in the

area of [1 Jane Avenue]”).

3

backyard.16 Based on the GPS data, the government’s GPS

expert testified at trial that the GPS was “disrupted”—likely

smashed— between 4:18:37 and 4:18:53 p.m.17 Police did not

recover any fingerprints of evidentiary value on the

fragments.18

Subsequent analysis of the GPS data led law

enforcement to two suspects: Rahman Fulton and Ricardo

Barnes. The GPS had signaled its location as 2-6 John

Avenue immediately before it had been destroyed.19 Fulton

and Barnes lived in opposite halves of a house located at that

address. Two John Avenue was owned by Michael

Calcaterra, who rented a room to Fulton,20 while the 6 John

half belonged to Barnes’ mother, with whom Barnes lived.21

The figure below depicts Fulton, Barnes, and the Calcaterra’s

house and its relation to the 1 Jane Avenue backyard.

16

J.A.764 (Lieutenant Gomez); 822 (Lieutenant Gomez);

455, 464-69 (Officer Kurt Edelman describing pieces).

17

J.A. 313 (Expert Dr. Richard Andrew Fuller explaining that

the sudden movement of the GPS device indicated in the GPS

data at 4:18:37 can be explained by a sudden shock to the

device, such as hitting the device against a rock); 1239 (GPS

data displaying disruption).

18

J.A. 831-32 (FBI Agent James Scartozzi).

19

J.A. 293-94, 301-302.

20

J.A. 165.

21

J.A. 656.

4

2-6 John Avenue22

The thick black line in this figure encloses the two-family

home where the Calcaterras, Fulton, and the Barnes lived.

The dashed line down the middle demarcates the boundary

between the two residences.

B. Rahman Fulton

At the time of the robbery, Rahman Fulton was

employed as a sanitation worker for the Morris County

Municipal Utilities Authority.23 Despite this source of

income, he was slightly behind on his rent payments24 and

owed his girlfriend some money.25

Officers first spoke to Fulton on the day of the robbery

as they canvassed the Jane and John Avenue area after

22

J.A. 1224, 1225, 1226, 166, 170-76 (Michael Calcaterra

describing his half of the house), 942 (Michael Calcaterra’s

son describing the layout of his house).

23

J.A. 524-25.

24

J.A. 178 (Michael Calcaterra).

25

J.A. 606 (Rosalyn Torres, Fulton’s girlfriend at the time of

the robbery).

5

locating the GPS.26 By then, Officer Edelman had heard a

report that someone fitting the description of the perpetrator

lived at 2 John.27 Following that lead, two officers went to 2

John at around 6:00 p.m. and saw Fulton sitting on the

stairs.28 When questioned about his whereabouts earlier that

day, Fulton told them he had been at work.29

In a subsequent interview, however, Fulton admitted to

the police that he had lied about being at work that day.30

Instead, on the day of the robbery, Fulton had returned to 2

John in the morning after spending the night at his girlfriend’s

house.31 He then called in sick to work and spent the rest of

the day around the house.32 At trial, Michael Calcaterra’s son

corroborated Fulton’s story. He testified that Fulton came

home that morning, went into his room, and then came out so

the two could play video games together in the living room.33

He further testified that after the games, Fulton returned to his

room to watch TV and was home the rest of the day.34

At around 3:00 or 3:30 p.m.,35 Michael Calcaterra

returned home from work and spent 10-15 minutes in his

house before he and his son went next door to cut their

neighbor’s lawn.36 The neighbor, Keith Munro, lives on John

26

J.A. 473 (Officer Edelman), 620-21 (Lieutenant Gomez).

27

J.A. 481 (Officer Edelman).

28

J.A. 620-21, 631 (Lieutenant Wilson).

29

J.A. 622-23 (Lieutenant Wilson).

30

J.A. 778-79 (Lieutenant Gomez).

31

J.A. 593 (Torres).

32

J.A. 526-27. The government points out that Fulton never

provided his employer with a doctor’s note for his absence

from work, as company policy required. However, his failure

to provide a doctor’s note does not prove he was not sick. It

only proves that he failed to comply with company policy.

Similarly, the fact that he may have misrepresented that he

was sick to his employer may show that he was not an

exemplary employee, but it is hardly relevant to establishing

that he is a bank robber.

33

J.A. 938-41 (Michael Calcaterra’s son).

34

Id.

35

J.A. 179 (Michael Calcaterra).

36

J.A. 180-81 (Michael Calcaterra).

6

Avenue.37 Michael testified that they likely started mowing at

around 3:45 p.m.38 When defense counsel asked Michael’s

son whether Fulton left the house while they were cutting the

lawn, he replied, “No. He only sat on the porch,” where he

had gone out to smoke.39

At 4:19:12 p.m., as police were arriving in the John

Avenue neighborhood and seconds after the GPS device was

destroyed, Fulton made a 12-second phone call to his sister’s

girlfriend, Karina Echevarria.40 Echevarria worked at a Kmart

in the same shopping center as the PNC Bank.41 Fulton

occasionally picked Echevarria up from this Kmart and drove

her to school.42

The government presented this call as a key piece of

evidence in its case.43 Eight months after the robbery,

Echevarria testified before a grand jury44 that:

[Fulton] called me that day that the bank was

robbed and he’s like, oh, did you hear? And I’m

like, yeah, no. I said no, that I didn’t hear, and

he told me, he’s like, oh, you know, this

happened, you know, Victory Gardens is

blocked off, so, I’m like, oh, that’s crazy.45

Because the police were just beginning to arrive in Fulton’s

neighborhood at the time he placed this call, the government

argues that Echevarria’s testimony was probative of his

guilt.46 According to the government, Fulton could not have

known about the PNC robbery that occurred just 10 minutes

prior to his phone conversation unless he was involved in the

crime.

Fulton claimed that he did not call Echevarria to ask

about the robbery. Instead, he suggested that she was the one

37

J.A. 181 (Michael Calcaterra).

38

J.A. 183 (Michael Calcaterra).

39

Id. at 944-45 (Michael Calcaterra’s son).

40

J.A. 571 (Karina Echevarria).

41

J.A. 564 (Karina Echevarria).

42

J.A. 564, 570 (Karina Echevarria).

43

Appellee’s Br. at 31.

44

Appellant’s Br. at 17.

45

Id. at 569 (Karina Echevarria).

46

Appellee’s Br. at 31.

7

who first told him about the robbery at the PNC Bank. At

trial, the government confronted Echevarria with her grand

jury testimony and asked her if she remembered who initiated

the discussion of the bank robbery. She stated that she could

not remember,47 but she believed Fulton discussed the bank

robbery with her during her 4:19:12 p.m. phone with him that

day.48

After the initial call from Fulton to Echevarria,

Echevarria called Fulton back at 4:25 p.m. That call lasted 50

seconds.49 At trial, Echevarria testified that she called him

back after she went outside to assess what was going on at the

PNC Bank.50

Based on this information as well as the GPS data,

police executed a search warrant at 2 John Avenue on July 5,

2012.51 They did not find any traces of the GPS nor any other

evidence during that search.52

C. Ricardo Barnes

Investigators first spoke to Ricardo Barnes on July 12,

2012, nearly a month and a half after the robbery.53 Barnes

told officers that he had been hanging out with a close friend,

Nicola Gibbs, on the day of the robbery.54 He testified at trial

that he was in the Orange-Irvington area doing some

shopping that day.55 He also stated that Gibbs dropped him

off at his mother’s house on John in the early evening.56

Barnes was unemployed at the time of the robbery.57

He was doing odd jobs and primarily living with his mother.

He had been fired from bank-teller jobs at Bank of America

47

J.A. 572 (Karina Echevarria).

48

J.A. 576 (Karina Echevarria).

49

J.A. 579 (Karina Echevarria).

50

J.A. 578-79 (Karina Echevarria).

51

J.A. 777 (Lieutenant Gomez).

52

J.A. 778 (Lieutenant Gomez).

53

J.A. 784.

54

J.A. 670 (Ricardo Barnes).

55

J.A. 671 (Ricardo Barnes).

56

J.A. 673, 683-85 (Ricardo Barnes).

57

J.A. 681 (Ricardo Barnes).

8

and Wells Fargo Bank.58 He testified that neither Wells Fargo

nor Bank of America places GPS tracking devices in the cash

stacked in tellers’ drawers.59

The table below summarizes the timing of the relevant

events on May 25, 2012.

II.

Fulton’s trial began on January 14, 2014.60 After

hearing all of the evidence, a jury convicted Fulton of the

bank robbery as well as use of a firearm in furtherance of a

crime of violence.61 He was subsequently sentenced to 57

months in prison for the robbery and 84 consecutive months

for the firearm offense.62 Fulton does not challenge this

sentence on appeal. As noted at the outset, he bases his claims

for relief on several of the district court’s evidentiary rulings

as well as statements the prosecution made during closing

arguments.

A. Lay Opinion Testimony Regarding Barnes’ Cell Phone

Usage

58

J.A. 652-56 (Ricardo Barnes).

59

J.A. 666 (Ricardo Barnes).

60

J.A. 25.

61

J.A. 3.

62

J.A. 4.

9

One of the principal reasons investigators eliminated

Barnes as a suspect was that they believed he was on his

phone when the robbery occurred. The government attempted

to persuade the jury of this view through lay witness

testimony from FBI Special Agent James Scartozzi. Agent

Scartozzi testified that records of Barnes’ phone calls

established that he was on the phone when the robbery

occurred. Since none of the witnesses testified that the robber

spoke on a phone during the robbery, Scartozzi told the jury

that Barnes could not be the robber.

Fulton now argues that such testimony was improper.

Because defense counsel did not object to Scartozzi’s lay

opinion testimony at trial, we review for plain error.63 We

agree that the district court did err in allowing Scartozzi to

offer a lay opinion that Barnes was on the phone at the time

of the robbery. However, we conclude that this error was

harmless and therefore does not entitle Fulton to any relief.

1.

Agent Scartozzi was the FBI case agent assigned to

this crime. The government called him to testify as a

summary witness, to provide the background of the

investigation.64 Fulton objected, arguing a summary witness

was not necessary. Although the trial judge agreed that the

need for such a witness was “underwhelm[ing],”65 he

nevertheless allowed Scartozzi to describe the investigation.66

In response to a line of questions regarding why he

excluded Barnes as a suspect, Scartozzi testified that Barnes

could not have committed the robbery because he was on the

phone at the exact time it occurred. However, Barnes’ cell

phone records only establish that Barnes received an

incoming call at the time of the robbery (4:08:44 p.m.).67 The

63

See United States v. Christie, 624 F.3d 558, 567 (3d Cir.

2010); see also United States v. Olano, 507 U.S. 725, 731-32

(1993).

64

J.A. 816.

65

J.A. 818.

66

J.A. 818.

67

J.A. 1229.

10

records do not show whether the call was answered or went to

voicemail. Yet, based on the mere fact that Barnes received a

call, Scartozzi assumed that Barnes took the call and had a

conversation.68 He then concluded that Barnes could not have

committed the robbery, and testified to that effect.69

Scartozzi’s conclusion was based solely on his assumption

that “if [Barnes] had committed the bank robbery, [he] would

have had to have been on the cell phone while he was doing

that.”70

Nevertheless, on cross-examination, defense counsel

elicited a critical admission from Scartozzi: the call in

question might have gone to voicemail.71 Defense counsel

also called its own investigator, Nicole Dreyer,72 who

testified that the 4:08:44 p.m. phone call did go to

voicemail.73 Thus, the jury clearly understood that the mere

fact that Barnes received a call at 4:08:44 p.m. did not mean

he took the call at that time. Dreyer’s testimony was

consistent with common sense.

Despite Dreyer’s testimony that the call in question

went to voicemail, Scartozzi continued to testify, on re-direct,

that Barnes’ cell records demonstrated he was not the

perpetrator.74 Indeed, Scartozzi stated that this evidence was

one of the “most important[]” factors that led him to exclude

Barnes as a suspect.75 More specifically, when asked why he

ruled Barnes out, Scartozzi replied: “There were several

factors[,] . . . but, most importantly, his cell data showed that

he was on the phone during the bank robbery . . . .”76

2.

68

J.A. 842.

69

J.A. 846 (Scartozzi, direct) (“[W]e had the fact that he was

on a phone call during the time of the bank robbery . . . .”);

925 (Scartozzi, re-direct) (“[H]is cell data showed that he was

on the phone during the bank robbery . . . .”).

70

Id. at 842 (Scartozzi, direct).

71

J.A. 894 (Scartozzi, cross).

72

J.A. 989 (Nicole Dreyer).

73

J.A. 997 (Nicole Dreyer).

74

J.A. 925 (Scartozzi, redirect).

75

Id. at 925 (Scartozzi, redirect).

76

Id. (Scartozzi, redirect).

11

Federal Rule of Evidence 701 permits a non-expert

witness to offer her opinion to the jury if, and only if, her

testimony is: “(a) rationally based on the witness’s

perception; (b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge within

the scope of Rule 702.”77 Such testimony is known as lay

opinion testimony, and the proponent of the testimony bears

the burden of providing an adequate foundation for that

testimony.78 If the testimony fails to meet any one of the three

foundational requirements, it should not be admitted.79

In layman’s terms, Rule 701 means that a witness is

only permitted to give her opinion or interpretation of an

event when she has some personal knowledge of that

incident. The objective of such testimony is to put “‘the trier

of fact in possession of an accurate reproduction of the

event.’”80 In other words, “‘lay opinion testimony is

permitted under Rule 701 because it has the effect of

describing something that the jurors could not otherwise

experience for themselves by drawing upon the witness’s

sensory and experiential observations that were made as a

first-hand witness to a particular event.’”81 This rule

recognizes the reality that “eyewitnesses sometimes find it

difficult to describe the appearance or relationship of persons,

the atmosphere of a place, or the value of an object by

reference only to objective facts.”82 Accordingly, it permits

77

Fed. R. Evid. 701.

78

United States v. Freeman, 730 F.3d 590, 595-96 (6th Cir.

2013); United States v. Garcia, 413 F.3d 201, 211 (2d Cir.

2005); United States v. Grinage, 390 F.3d 746, 749 (2d Cir.

2004).

79

Fed. R. Evid. 701.

80

Freeman, 730 F.3d at 595 (quoting Advisory Committee

Notes to Fed. R. Evid. 701).

81

Id. at 597 (quoting United States v. Jayyousi, 657 F.3d

1085, 1120 (11th Cir. 2011) (Barkett, J., concurring in part

and dissenting in part)).

82

Garcia, 413 F.3d at 211.

12

witnesses “to testify to their personal perceptions in the form

of inferences or conclusory opinions.”83

Importantly, the rule is carefully designed to exclude

lay opinion testimony that “amounts to little more than

choosing up sides, or that merely tells the jury what result to

reach.”84 Courts have recognized that this Rule does represent

“‘a movement away from . . . courts’ historically skeptical

view of lay opinion evidence,’ and is ‘rooted in the modern

trend away from fine distinctions between fact and opinion

and toward greater admissibility.’”85 Nonetheless, it seeks to

protect against testimony that usurps the jury’s role as fact

finder. While opinion testimony that “embraces an ultimate

issue”86 to be decided by the trier of fact is not per se

inadmissible, such testimony is barred when its primary value

is to dictate a certain conclusion.87 “[T]he purpose of the

foundation requirements of the federal rules governing

opinion evidence is to ensure that such testimony does not so

usurp the fact-finding function of the jury.”88

3.

Fulton’s primary argument is that the district court

should have excluded Scartozzi’s testimony under the first

prong of Rule 701, i.e., Scartozzi’s testimony was not

“rationally based on [his] perception.”89 In response, the

83

Id. (citing Advisory Committee Notes on 1972 Proposed

Rules and on 2000 Amendments and 4 Weinstein’s Federal

Evidence § 701.03[4][b]).

84

United States v. Stadtmauer, 620 F.3d 238, 262 (3d Cir.

2010) (internal quotation marks, citations, alterations

omitted).

85

Id. (alterations in original) (quoting Asplundh Mfg. Div. v.

Benton Harbor Eng’g, 57 F.3d 1190, 1195 (3d Cir. 1995)).

86

Fed. R. Evid. 704(a).

87

See 4 Weinstein’s Federal Evidence § 701.05 (noting that

courts should be wary of opinion testimony whose “sole

function is to answer the same question that the trier of fact is

to consider in its deliberations”).

88

Garcia, 413 F.3d at 210-11 (citing Fed. R. Evid. 704 and

Advisory Committee Notes on 1972 Proposed Rules).

89

Fed. R. Evid. 701(a).

13

government argues that Scartozzi rationally based his opinion

that Barnes was on the phone during the robbery on Barnes’

phone records.

Be these arguments as they may, we will focus on the

second prong of Rule 701—the requirement that lay opinion

testimony be “helpful to clearly understanding the witness’s

testimony or to determining a fact in issue”90—since it is

dispositive. Scartozzi’s opinion regarding whether Barnes

was on the phone was simply not helpful. In fact, it was the

antithesis of helpful—it was dead wrong and even

misleading. An opinion only qualifies as helpful “if it aids or

clarifies an issue that the jury would not otherwise be as

competent to understand.”91 Thus, where a witness is not in a

better position than the jurors to form an opinion or make an

inference, the witness’s opinion is inadmissible under Rule

701(b).

We have consistently excluded testimony that meets

the “rationally based” prong because it is insufficiently

“helpful to the jury.” For example, in United States v.

Dicker,92 our court excluded an agent’s testimony that

interpreted an uncomplicated conversation for the jury. The

district court had admitted the testimony, reasoning that “‘the

conversations were truncated sentences, sentence fragments

and incomplete thoughts,’” which relied on “‘code words.’”93

We reversed on appeal, explaining that the recorded

conversation was “perfectly clear” without the agent’s

“interpretations,”94 and the jury should have “been allowed to

draw its own conclusions regarding” the recording.95

Similarly, in United States v. Anderskow,96 we held

that a witness’s lay opinion was inadmissible under Rule

701(b) because the jurors themselves could have just as easily

interpreted the evidence on which the witness opined. In that

90

Fed. R. Evid. 701.

91

Lauria v. Nat’l R.R. Passenger Corp., 145 F.3d 593, 600

(3d Cir. 1998).

92

853 F.2d 1103, 1108 (3d Cir. 1988).

93

Id. (citing district court opinion below).

94

Id. at 1110 (internal quotation marks omitted).

95

Id.; see United States v. Hoffecker, 530 F.3d 137, 170-71

(3d Cir. 2008) (quoting this language).

96

88 F.3d 245, 250-51 (3d Cir. 1996).

14

case, a cooperating conspirator in a loan fraud conspiracy

testified that he provided one of the defendants, Donald

Anchors, with fraudulent documents to be passed along to

borrowers.97 On direct examination, the government asked the

cooperating conspirator whether Anchors would have been

“deceived by the information that [the witness was] sending

him.”98 The witness responded: “I had no reason to believe

that he wasn’t fully aware of what was occurring, as long as

he was getting paid.”99 We held that this testimony was

inadmissible under Rule 701(b): “We do not understand how

a witness’ subjective belief that a defendant ‘must have

known’ [of the object of a conspiracy] is helpful to a

factfinder that has before it the very circumstantial evidence

upon which the subjective opinion is based.”100 “Stated

another way, the witness’s testimony was not helpful—and

thus inadmissible under Rule 701—because the jury was in

just as good a position as the witness to infer what Anchors

‘must have known.’”101 As we further pointed out, the

government was free during closing to ask the jury to draw

the inference the witness had drawn. But Rule 701(b)

prohibited the government from calling a witness to offer this

inference through opinion testimony.102

As the court of appeals for the First Circuit has

explained, the “nub” of Rule 701(b)’s requirement is “to

exclude testimony where the witness is no better suited than

the jury to make the judgment at issue.”103 Accordingly, in

United States v. Meises, the First Circuit ruled that where the

jury had an opportunity to listen to all the same recordings as

the testifying case agent, that agent’s testimony was

inadmissible under 701(b) because he had no “insight to offer

the jurors.”104 The agent “inferred [the defendant’s] roles not

97

Id. at 249.

98

Id.

99

Id. at 250.

100

Id. at 251.

101

United States v. Stadtmauer, 620 F.3d 238, 265 (3d Cir.

2010) (characterizing Anderskow’s holding as such).

102

Anderskow, 88 F.3d at 251.

103

United States v. Meises, 645 F.3d 5, 16 (1st Cir. 2011)

(internal quotation marks omitted).

104

Id.

15

from any direct knowledge, but from the same circumstantial

evidence that was before the jury—effectively usurping the

jury’s role as fact-finder.”105 Again, while, “[i]t was perfectly

appropriate for the prosecutor to argue in summation that the

[relevant] evidence . . . supported the inference that they were

the buyers,” the case agent’s testimony amounted “to simply

dressing up argument as evidence.”106 Thus, where a case

agent’s testimony leaves the jury “to trust that [the case

agent] had some information—information unknown to

them—that made him better situated to interpret the words

used in the calls than they were,”107 when, in fact, he does

not, such testimony is inadmissible under Rule 701(b).108

Scartozzi’s interpretation of Barnes’ phone records as

a lay witness did exactly what the body of case law

interpreting Rule 701(b) prohibits. Nothing about Barnes’

phone records was unclear, coded, or in need of

interpretation. Instead, Scartozzi’s interpretation of Barnes’

phone record presents a quintessential example of “where the

witness is no better suited than the jury to make the judgment

at issue.”109 The “value” of Scartozzi’s testimony regarding

the phone records was to “tell the jury what result to

reach.”110

The government claims that Scartozzi’s testimony

helped the jury assess whether Scartozzi prematurely

excluded Barnes as a suspect. But Scartozzi’s opinion

testimony did more than just shed light on the thoroughness

(or lack thereof) of Scartozzi’s investigation. Scartozzi’s

105

Id.

106

Id. at 16-17.

107

United States v. Freeman, 730 F.3d 590, 597 (6th Cir.

2013).

108

See id. at 597-98; United States v. Hampton, 718 F.3d 978,

982-83 (D.C. Cir. 2013); Meises, 645 F.3d at 16-17; United

States v. Johnson, 617 F.3d 286, 292-93 (4th Cir. 2010);

United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007);

United States v. Garcia, 413 F.3d 201, 213-14 (2d Cir. 2005);

United States v. Grinage, 390 F.3d 746, 750-51 (2d Cir.

2004).

109

Meises, 645 F.3d at 16 (internal quotation marks omitted).

110

Garcia, 413 F.3d at 210 (internal quotation marks

omitted).

16

testimony provided a definitive interpretation of a crucial

disputed fact—whether Barnes could have committed the

robbery. Had Scartozzi testified that he excluded Barnes as a

suspect because he assumed Barnes was on the phone, such

testimony might have been helpful to determining why

Scartozzi excluded Barnes as a suspect. However, Scartozzi

did not frame his testimony this way. Instead, he stated that

Barnes could not have committed the robbery because he

“would have had to have been on the cell phone while he was

doing that.”111 Such testimony usurped the jury’s role as fact

finder.

Accordingly, Scartozzi’s testimony regarding whether

Barnes could have committed the robbery due to the phone

call he received does not meet Rule 701(b)’s helpfulness

requirement. Because we conclude that Scartozzi’s lay

testimony failed this second prong, we need not address the

other two prongs of the Rule 701 test.

4.

Despite the district court’s error in admitting

Scartozzi’s testimony, we cannot reverse unless we find that

this error was plain.112 To demonstrate plain error, an

appellant must establish “that (1) there is an ‘error’; (2) the

error is ‘clear or obvious, . . .’; (3) the error ‘affected the

appellant’s substantial rights, which in the ordinary case

means’ it ‘affected the outcome of the district court

proceedings’; and (4) ‘the error seriously affect[s] the

fairness, integrity or public reputation of judicial

proceedings.’”113

Allowing Scartozzi’s testimony was an error that was

clear and obvious as required under the first and second

prongs of the harmless error test. Nevertheless, we conclude

that Fulton has failed to show that the error affected his

111

J.A. 842 (Scartozzi, direct).

112

Because defense counsel did not object to Scartozzi’s lay

opinion testimony at trial, we review for plain error. See

United States v. Christie, 624 F.3d 558, 567 (3d Cir. 2010);

see also United States v. Olano, 507 U.S. 725, 731-32 (1993).

113

United States v. Marcus, 560 U.S. 258, 262 (2010)

(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

17

substantial rights and seriously affected the fairness, integrity,

or public reputation of the judicial proceedings.

Despite Scartozzi’s dogged persistence in testifying

that he eliminated Barnes because of the incoming phone call,

defense counsel was able to solicit a concession from

Scartozzi that the call in question could have gone to

voicemail. This admission helped establish that Barnes was

not necessarily on the phone at the time of the robbery. It

exposed Scartozzi’s statement as a mere opinion, and an

incorrect one at that. More importantly, Fulton’s investigator

testified that the call in question did actually go to voicemail.

Therefore, Fulton presented persuasive evidence that Barnes

was not, in fact, on the phone at the time of the robbery. At

the very least, defense counsel showed that Barnes should not

have been excluded as a suspect merely because he received a

call at 4:08 p.m. Accordingly, we cannot conclude that

Scartozzi’s improper testimony affected the outcome of the

district court proceedings.

Moreover, at trial, the government presented

unrebutted expert testimony interpreting Barnes’ cell phone

data and concluding that his phone was most likely not at the

PNC Bank at the time of the robbery. An FBI agent testified

that Barnes’ cell data suggested his phone was probably not

within 1,000 feet of the PNC Bank.114 This testimony

mitigates the likelihood that Scartozzi’s testimony affected

the outcome of the proceedings. Even without Scartozzi’s

statement that Barnes was on his phone, the government still

had evidence that Barnes’ phone (and therefore, likely,

Barnes) was not at the PNC Bank during the robbery.115

Fulton’s contention that Scartozzi’s testimony

seriously affected the fairness, integrity, or public reputation

of the judicial proceedings is just as weak. Although

Scartozzi did persist in testifying on re-direct that part of the

reason he excluded Barnes was because he received the 4:08

p.m. call, the government did not rely on this testimony

during closing. In fact, at closing, the government did not

114

J.A. 729-31.

115

See United States v. Stadtmauer, 620 F.3d 238, 266 (3d

Cir. 2010) (holding that a Rule 701 error was harmless

because the record as a whole suggested the conclusion the

inadmissible evidence offered).

18

even mention Barnes’ phone call. Instead, “in urging a guilty

verdict, the prosecution focused the jury’s attention only on

the extensive admissible evidence supporting that result.”116

Under these circumstances, we hold that the district court’s

error did not seriously affect the fairness, integrity, or public

reputation of the judicial proceedings. Accordingly, we hold

that the district court’s error was not plain. Thus, Fulton is not

entitled to relief because of the erroneous admission of lay

opinion testimony regarding Barnes’ phone call.

B. Lay and Expert Testimony on the Appearances of Barnes

and Fulton

Fulton claims that Scartozzi and another officer,

Lieutenant Jeffrey Gomez, offered improper lay opinion

testimony about the comparative appearances of Barnes,

Fulton, and the person depicted in the surveillance video, in

violation of Federal Rule of Evidence 701. Fulton also argues

that Gomez improperly presented expert testimony in

violation of Federal Rule of Evidence 702. Because defense

counsel did not object to Gomez and Scartozzi’s statements at

trial, our review of these issues is for plain error.117 We again

agree with Fulton that the district court erred in admitting the

agents’ testimony regarding the comparative appearances of

Barnes and Fulton. However, we once again conclude that the

error was harmless. Furthermore, we disagree with Fulton’s

challenge to Gomez’s testimony under Rule 702.

1.

A surveillance video captured footage of the robber

demanding and receiving money from the bank tellers, and

then leaving the bank. At trial, the government offered the

testimony of Agent Scartozzi as well as another investigating

116

United States v. Garcia, 413 F.3d 201, 217 (2d Cir. 2005)

(finding a Rule 701 error to be harmless, in part, because the

government “never referenced it again throughout the case . .

. much less ma[d]e improper use of [the] challenged opinion

in summation”).

117

See Christie, 624 F.3d at 567; see also Olano, 507 U.S. at

731-32.

19

officer, Lieutenant Jeffrey Gomez. They both offered their

opinions about whether Fulton or Barnes’ appearance better

matched the robber in the surveillance video. Gomez testified

that he watched the bank surveillance video and concluded

that the suspect “was a very muscular male” and that “[g]iven

the pictures, the height of the counters and stuff, he was six

foot, maybe just over six foot tall.”118 Gomez also testified

that he had personal knowledge of the PNC Bank at issue

because he does his banking at that branch.119 Reviewing a

still from the surveillance video,120 Gomez stated, “you can

see the left arm, the bicep, you can see the definition, the

contrast on the light-colored floor in the back, as well as the

height of what I’ll refer to as the, I guess the cabinets in the

middle.”121 Reviewing another surveillance video still,122

which depicts the robber leaning over the bank counter,

Gomez testified: “Once again, referring to the height, I’m

about five foot eight, and standing at this counter here, I

would not have the ability to lean over this counter . . . the

way that the bank robber is in this picture.”123 Thus, Gomez

concluded, “[t]hat leads me to believe that he’s at least six-

foot tall, maybe just over six-foot tall.”124 Regarding the

suspect’s build, Gomez stated, “you look at the contrast of the

light floor in the background and the arm here, as well as the

shoulder, you can see that he has a muscular definition to

him.”125 He added, “with reference to the clothing, you can

see the outer garment in this picture, it’s too big for him.”126

Gomez also testified that when he met Barnes for the

first time two months after the robbery, he concluded

“immediately”127 that Barnes could not be the person in the

surveillance video. He explained that Barnes “was a very,

118

J.A. 769.

119

J.A. 769.

120

Id. at 1232.

121

Id. at 769.

122

Id. at 1220.

123

Id. at 771.

124

Id.

125

Id.

126

Id.

127

Id. at 785.

20

very large male, over 300 pounds.”128 After reviewing a photo

of Barnes at trial,129 Gomez said “Mr. Barnes lacked the

muscular build that the bank robber had. You look at his mid-

section here, the front view, at that time [Barnes] had a very,

very large belly.”130 Estimating that Barnes weighed over 300

pounds, Gomez concluded that Barnes was “[s]ignificantly

heavier than the bank robber.”131

Scartozzi testified that he also excluded Barnes based

on comparisons of photographs of Barnes132 with the

surveillance video. He explained that the man in the

surveillance video “looks fit, muscular, has an athletic build,

and that’s denoted basically by their basic shape. Athletic

build means that your waist is slimmer than your chest

area.”133 When questioned about his physical observations of

Barnes, he testified, “[a]lthough he’s a large African

American male, his height is similar to that of the bank

robber, his physical – his physique does not match in that he

is not athletic, meaning his waist size is actually bigger than

his chest size.”134 Based on his comparison of photos of

Barnes to the surveillance footage, Scartozzi concluded that

Barnes “did not match the physical descriptors of the bank

robbery.”135 Scartozzi met Barnes for the first time at trial.136

At one point during Scartozzi’s testimony, while

Scartozzi was explaining why he excluded other individuals

as suspects, the trial judge warned the government against

eliciting “any opinion about whether or not the defendant is

the person who committed the bank robbery.”137 The judge

cautioned, “he’s at best giving something vaguely resembling

lay opinion testimony right now. . . . [H]e cannot give any

128

Id.

129

Id. at 1231.

130

Id. at 787.

131

Id.

132

J.A. 836 (reviewing Gov. Exh. 411, at J.A. 1231).

133

Id. at 822.

134

Id. at 836-37.

135

Id. at 838.

136

Id. at 902.

137

Id. at 849.

21

opinion testimony in any way, shape or form of the ultimate

issue in this case.”138

Despite this warning, the government elicited

testimony from Scartozzi comparing photos of Fulton with

the surveillance stills.139 Scartozzi described the photos of

Fulton as depicting a “[v]ery athletic and thin” person with a

“‘V’ shape to his body.”140 “He’s a very well developed

individual as far as musculature,” with a “thin waist and wide

upper body.”141 He concluded, based on his physical

comparison of the bank robber and Mr. Fulton, that “Mr.

Fulton’s body type and muscularity was similar to that of the

person depicted in the PNC Bank surveillance video.”142

2.

Fulton argues that Scartozzi and Gomez’s testimony

meets neither the first nor second requirement of Rule 701:

that the testimony be rationally based on the witness’s

perception and be helpful to the jury. We address the second

issue first.

This testimony fails Rule 701(b)’s helpfulness

requirement. As previously explained, an opinion only

qualifies as helpful “if it aids or clarifies an issue that the jury

would not otherwise be as competent to understand.”143 Lay

opinion testimony that aids in the identification of suspects

“is particularly valuable where . . . the lay witnesses are able

to make the challenged identifications based on their

familiarity with characteristics of the defendant not

immediately observable by the jury at trial.”144 In other

words, “lay witness testimony is permissible where the

witness has had sufficient contact with the defendant to

138

Id. at 850.

139

J.A. 852-56 (reviewing Gov. Exhs. 394, 394A and 392, at

App. 1233, 1234, 1235).

140

Id. at 853.

141

Id. at 853-54.

142

Id. at 856.

143

Lauria v. Nat’l RR Passenger Corp., 145 F.3d 593, 600

(3d Cir. 1998) (emphasis added).

144

United States v. Langford, 802 F.2d 1176, 1179 (9th Cir.

1986) (emphasis added).

22

achieve a level of familiarity that renders the lay opinion

helpful.”145 As the court of appeals for the Ninth Circuit has

held, whether

lay opinion is helpful depends on a totality of

the circumstances including the witness’s

“[f]amiliarity with the defendant’s appearance

at the time the crime was committed,” the

witness’s familiarity with the defendant’s

customary manner of dress, insofar as such

information related to the clothing of the person

depicted in the surveillance photograph,

whether the defendant disguised his or her

appearance during the offense or altered his or

her appearance before trial, and whether the

witness knew the defendant over time and in a

variety of circumstances, such that the witness’s

lay identification testimony offered to the jury

“a perspective it could not acquire in its limited

exposure” to the defendant.146

This recognizes that the more familiar a witness is with a

suspect’s appearance, the more useful her identification

testimony is to the jury. At least in theory, a witness who is

intimately familiar with a defendant’s appearance can

perceive similarities and differences that jurors might not

notice. In short, the witness may be in a better position than

the jurors to make the identification from the relevant

evidence.

For example, in United States v. Jackman,147 the First

Circuit held that lay witness opinions regarding the identity of

145

United States v. Beck, 418 F.3d 1008, 1014 (9th Cir. 2005)

(internal quotation marks omitted).

146

Id. at 1015 (alterations in original) (quoting United States

v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995), United States v.

Pierce, 136 F.3d 770, 774, 775 (11th Cir. 1998), United

States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986) cert.

granted, judgment vacated on other grounds, 479 U.S. 1077

(1987)); see also Jackman, 48 F.3d at 4-5; United States v.

Towns, 913 F.2d 434, 445 (7th Cir. 1990); United States v.

Farnsworth, 729 F.2d 1158, 1160-61 (8th Cir. 1984).

147

48 F.3d 1 (1st Cir. 1995).

23

a bank robber captured in surveillance photographs were

admissible because those witnesses were intimately familiar

with the suspect’s appearance. In that case, the surveillance

photographs were somewhat blurred and only showed half of

the robber’s face. Under those circumstances, the First Circuit

held that the district court properly admitted the testimony of

three witnesses who knew the defendant well and “had seen

him on multiple occasions under a variety of

circumstances.”148 The witnesses’ identification testimony

was helpful because they knew the defendant’s appearance

well and the surveillance photographs were unclear.149 As the

First Circuit explained, the lay identification testimony was

admissible because “the witness[es] possesse[d] sufficiently

relevant familiarity with the defendant that the jury [could

not] also possess.”150 “[W]hen the photographs are not either

148

Id. at 5.

149

Id. at 5-6; see also United States v. White, 639 F.3d 331,

336 (7th Cir. 2011) (holding that a defendant’s sister and

girlfriend could opine on the defendant’s appearance, when

surveillance footage of the crime was of poor quality, the

perpetrator was wearing a bulky winter coat and pulled-down

hat, and the defendant argued that the man captured in the

surveillance video was really his uncle. Because both women

knew the defendant and his uncle, “they were able to provide

the jury with helpful insight regarding the true identity of the

man shown in the surveillance video and counter [the

defendant’s] claim that the still photograph really depicted

[his uncle].”); United States v. Borrelli, 621 F.2d 1092, 1095

(10th Cir. 1980) (“Since Borrelli lived with his stepfather for

five years and had moved only a few days prior to the

robbery, his stepfather had independent knowledge of

Borrelli’s appearance both before and at the time of the

robbery. . . . In the seven months between the robbery and

trial, Borrelli had significantly altered his appearance . . . .

Because Borrelli’s stepfather was in a much better position

than the jury to give an opinion as to the resemblance

between Borrelli at the approximate date of the robbery and

the man in the surveillance photograph, this is an instance

where the opinion testimony was helpful to the jury in the

determination of a fact in issue.”).

150

Jackman, 48 F.3d at 5-6.

24

so unmistakably clear or so hopelessly obscure that the

witness is no better-suited than the jury to make the

identification,”151 lay witness testimony is admissible.

Neither Scartozzi nor Gomez had sufficient familiarity

with the appearances of Barnes or Fulton to assist the jury

here. Neither testified to any familiarity with Barnes or Fulton

apart from this case. Gomez’s in-person interactions with

Fulton and Barnes were very limited and he did not interview

Barnes until nearly two months after the robbery.152

Accordingly, he could not claim any familiarity with Barnes

at the time of the robbery. Scartozzi’s familiarity with Barnes

and Fulton was even more attenuated. He did not meet Barnes

until January 18, 2014, after Fulton’s trial began.153 These

minimal relations provided neither Scartozzi nor Gomez with

familiarity with the defendant’s appearance at the time the

crime was committed, the defendant’s customary manner of

dress, or the defendant in a variety of circumstances.

Accordingly, their opinion testimony was not helpful within

the meaning of Rule 701(b). These agents were no better

equipped than the jurors to compare the suspect’s appearance

with that of Barnes and Fulton. Testimony from lay witnesses

whose exposure to suspects is “limited to three days in a

sterile courtroom setting” is not helpful.154 Scartozzi and

151

Id. at 6; see United States v. Farnsworth, 729 F.2d 1158,

1160 (8th Cir. 1984) (“A witness’s opinion concerning the

identity of a person depicted in a surveillance photograph is

admissible if there is some basis for concluding that the

witness is more likely to correctly identify the defendant from

the photograph than is the jury.”).

152

J.A. 784 (Gomez).

153

J.A. 902, 904.

154

United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986),

vacated on other grounds, 479 U.S. 1077 (1987); see also

United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir.

1993) (excluding opinion testimony from an investigating

police officer identifying defendant in a surveillance

photograph because defendant’s appearance had not changed

between time of robbery and trial and officer’s testimony

regarding the defendant’s appearance “was based entirely on

25

Gomez’s testimony performed exactly the function Rule 701

is designed to prevent. They assumed the role of juror in

comparing photographs of Barnes and Fulton to the

surveillance footage and concluding Fulton looked more like

the robber than Barnes.

The government argues that it was entitled to present

Scartozzi and Gomez’s opinion testimony regarding the

appearances of Fulton and Barnes to rebut defense testimony

on this point.155 At trial, Fulton asked Michael Calcaterra

(Fulton’s roommate) and Rosalyn Torres (Fulton’s girlfriend

at the time of the robbery) to review the surveillance images

and opine on whether they depicted him. Both of those

witnesses were intimately familiar with Fulton’s appearance.

Therefore, as just explained, their testimony was appropriate.

Michael Calcaterra testified Fulton had a different appearance

from that of the robber in the surveillance footage.156

Michael Calcaterra explained that the robber appeared to be

“chunkier,”157 Fulton was a “little more defined,”158 and

Fulton’s head was smaller.159 Torres testified similarly.160 In

response, the government asked Gomez and Scartozzi to

review the images and offer their opinions.161

But the government is not entitled to elicit improper

lay opinion testimony to counter the defense’s proper opinion

evidence. As Fulton points out, the government’s argument

boils down to this: “because the defense elicited testimony

from individuals with personal knowledge of Fulton that

undermined the government’s theory of the case, the

government was entitled to respond with lay opinions from

Gomez and Scartozzi, regardless of the requirements of Rule

701.”162 We know of no authority for the proposition that

otherwise inadmissible evidence is admissible to rebut

his review of photographs of [the defendant] and witnesses’

descriptions of him”).

155

Appellee’s Br. at 15.

156

J.A. 208-10, 211-12, J.A. 215-16.

157

J.A. 209.

158

Id.

159

Id. at 215-26.

160

J.A. 609-10.

161

Appellee’s Br. at 15.

162

Appellant’s Reply Br. at 9.

26

evidence that hurts a party’s case. Rather, the government

must show that Scartozzi and Gomez’s testimony meets Rule

701’s requirements. It cannot make such a showing.

The concurrence also contends that this testimony was

proper because it was elicited for the purpose of explaining

why the officers eliminated Barnes as a suspect. However,

much of Gomez’s crucial lay opinion testimony regarding

Fulton’s appearance and its similarity to the robber’s was

solicited as part of Gomez’s initial testimony regarding who

he thought the culprit was.163 This testimony was solicited

before the issue of Barnes was even introduced. Therefore,

government presented opinion testimony that went beyond

merely explaining the exclusion of Barnes as a suspect: This

opinion testimony told the jury that the robber in the

surveillance video looked like Fulton. Moreover, the district

court never instructed the jury that the evidence should only

be considered as background to explain why the investigation

focused on Fulton.

Since the opinions of Scartozzi and Gomez were not

helpful to the jury under Rule 701(b), we need not determine

if they meet Rule 701’s other requirements.

3.

Although the district court erred in admitting Scartozzi

and Gomez’s lay opinion testimony regarding the

appearances of Barnes and Fulton, Fulton must once again

establish that this mistake amounts to plain error to obtain

relief. Here, the jury was able to view the surveillance

photographs and compare them to the appearances of both

Fulton and Barnes. Although the officers’ interpretation of the

evidence may well have influenced the jurors’ assessment of

the photos, the jury ultimately knew it was tasked with

interpreting the exact same evidence as the officers. The

jurors could rely on their own assessments of the photos,

rather than those of Scartozzi and Gomez.

Moreover, Fulton’s lay witnesses, Calcaterra and

Torres, rebutted the officers’ identification testimony. The

jurors were free to give more weight to Calcaterra and Torres’

testimony than that of Gomez and Scartozzi.

163

J.A. 768-775.

27

Nevertheless, a note of caution is warranted. We do

not doubt that jurors may well be inclined to attach special

significance to the identification testimony of law

enforcement officers. Jurors may assume that the officers’

training places them in a unique position to draw comparisons

and reach conclusions in evaluating evidence. Regrettably,

this tendency may persist despite an instruction that tells

jurors they are the ultimate finders of facts and must rely on

their own assessment of the evidence.

Despite this vexing issue, we must assess the impact of

the error in context with all of the evidence of Fulton’s guilt.

Because the other evidence is not insignificant, we find that

this error survives the harmless error inquiry. Fulton’s

telephone call to Echevarria in which he acknowledged

awareness of the bank robbery that had just occurred is

particularly damning. Absent this and the other evidence

tying Fulton to the robbery, it would be very difficult to

conclude that these erroneous evidentiary rulings were

harmless.

C. Expert Testimony

Fulton also argues for the first time on appeal that

Gomez’s testimony regarding the suspect’s height based on

Gomez’s estimation of the elevation of the bank counters was

improper expert testimony. Accordingly, he contends that this

testimony should have been elicited, if at all, from an expert

after a hearing pursuant to Daubert v. Merrell Dow

Pharmaceuticals, Inc.164

We disagree. As we have explained,

The prototypical example of the type of

evidence contemplated by the adoption of Rule

701 relates to the appearance of persons or

things, identity, the manner of conduct,

competency of a person, degrees of light or

darkness, sound, size, weight, distance, and an

endless number of items that cannot be

164

509 U.S. 579 (1993).

28

described factually in words apart from

inferences.165

“[L]ay testimony is improper where it encompasses opinions

that call for specialized skill or expertise—such as a

paramedic’s testimony that skull trauma caused the bruises on

a victim’s face.”166 Nevertheless, we have also clarified that

this does

not mean that an expert is always necessary

whenever the testimony is of a specialized or

technical nature. When a lay witness has

particularized knowledge by virtue of her

experience, she may testify—even if the subject

matter is specialized or technical—because the

testimony is based upon the layperson’s

personal knowledge rather than on specialized

knowledge within the scope of Rule 702.167

Therefore, as long as the technical components of the

testimony are based on the lay witness’s personal knowledge,

such testimony is usually permissible.

Gomez banked at the branch office that was robbed

and was personally familiar with the height of the counters.168

His personal knowledge afforded him a reference point to

opine on the stature of the suspect. This fits squarely within

the definition of lay witness testimony. Fulton claims that

Gomez’s testimony relied on a technique called “reverse

projection photogrammetry”169 to determine the suspect’s

height, but this claim is a real reach. Gomez did not measure

the height of the counters and then calculate the suspect’s

height based on that measurement. Instead, he merely

165

Asplundh Mfg. Div., a Div. of Asplundh Tree Expert Co. v.

Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995)

(citing Mason Ladd, Expert Testimony, 5 Vand. L. Rev. 414,

417 (1952)).

166

United States v. White, 492 F.3d 380, 401 (6th Cir. 2007)

(internal quotation marks and alterations omitted).

167

Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 81

(3d Cir. 2009).

168

J.A. 769.

169

Appellant’s Br. at 33.

29

described the suspect’s height in reference to a landmark with

which he was personally familiar. That is more akin to lay

opinion testimony than expert testimony.

Moreover, even if we assume that Gomez’s testimony

was erroneously admitted expert testimony, this error would

not have been “‘clear or obvious, rather than subject to

reasonable dispute.’”170 Accordingly, assuming arguendo that

this was error, it does not rise to the level of plain error.

Fulton is thus not entitled to relief on the basis of the

admission of that testimony.

III.

Fulton also argues that the prosecution misstated the

GPS evidence during closing arguments. He contends that

this misstatement deprived him of a fair trial. Our inquiry is

once again for plain error because Fulton did not object to the

prosecution’s statement at trial.171 We conclude that the

district court did not err.

A.

At trial, Dr. Richard Fuller, an expert in the field of

global navigation satellite systems, interpreted the GPS

tracker’s location data for the jury.172 Dr. Fuller explained the

GPS’s pathway and the reliability of the data associated with

this device. Most importantly, he explained Government

Exhibit 534A,173 which depicts where the GPS was located

from 4:14:47 p.m. to 4:16:19 p.m.174 The figure below

recreates Government Exhibit 534A with labels for the

different portions of the residence.

170

United States v. Marcus, 560 U.S. 258, 262 (2010)

(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

171

See United States v. Christie, 624 F.3d 558, 567 (3d Cir.

2010); see also United States v. Olano, 507 U.S. 725, 731-32

(1993).

172

Fuller actually helped invent the GPS device used in this

case. J.A. 238-39 (Fuller).

173

J.A. 1226.

174

J.A. 1239.

30

2-6 John Ave. with GPS Data (Government Exhibit 534A)

This exhibit was rotated ninety degrees counter-clockwise

when displayed at trial. In Government Exhibit 534A,

Barnes’ half of the residence appeared in the upper half of the

image. At trial, Fuller first explained that the circles and

ellipses above are error circles and ellipses, indicating “both

31

the confidence and statistical distribution of the [GPS]

data.”175 As he explained,

An error ellipse will take into account not just

the overall accuracy of the data, but the error

ellipse will also take into account the geometry,

the precise geometry that’s available from the

satellites at a given time, so, it’s a little bit more

precise in general than the error circle, but both

are meant to indicate same information, that you

have a certain level of confidence where a

particular device is at a given time. . . . It is

meant to give you an indication of the

confidence of the estimate of that point. . . .

[T]he ellipse gives you an idea of how confident

you are in that estimate. A larger ellipse means

lower confidence. A smaller ellipse means

higher confidence in the precision of that

individual point.176

He then clarified that the color of the error ellipses

corresponds to the strength of the GPS signal: “the higher the

signal level, the higher your confidence in your position.”177

He clarified that green error ellipses (light grey in the figure

above) represent the best signal conditions, blue are second

best (dark grey in the figure above), and brown are third

(none pictured in the figure above). He stated that,

statistically, there is a “68 percent likelihood” that the GPS is

within a given error ellipses, leaving “a 32 percent chance

that it’s outside the ellipses.”178

Fuller matched the error ellipses derived from the GPS

data with the location of roads and objects on Google Earth.

They matched. In other words, the GPS data indicated that the

device traveled on roads before reaching 2-6 John Avenue,

lending creditability to the accuracy of the GPS data. He

explained: “if there [were] offsets of the road data from the

image data or the GPS data from either one of those two, it

would call into question in my mind whether one or – one

175

J.A. 258.

176

Id. at 258-59.

177

Id. at 284.

178

Id. at 299.

32

part of that data is incorrect.”179 Here, however, “[t]he road

overlays on the image data were on to a meter level roughly,

and the positioning information on the places where [the

GPS] was most easy to identify at early in the track were very

correlated to both the road and image data.”180 This

correlation between the imagery, the mapping data, and the

GPS data gave Fuller a “significant level of trust in the three

correlating, the three being correct as looking at the overall

track [of the GPS].”181

Using Exhibit 534A, Fuller explained that the GPS

moved from the road towards the house on the side closer to

Barnes’ part of the residence.182 The earliest point of data

near the house is labeled in Figure 2. The GPS then moved

from the right to left half of the residence depicted in Figure

2. The part of Fuller’s testimony that is critical to Fulton’s

argument on appeal reads as follows:

Question: And so, am I correct that some of

these error ellipses overlap the inside and the

outside of the house?

Fuller: Yes.

Question: And some of them are fully

contained within?

Fuller: Yes.

Question: And can you tell the jury what period

of time this video covers?

Fuller: This covers from 4:14:47 p.m. . . . till

4:16:19 p.m., . . . so approximately a 90-second

period.

Question: And have you reached any expert

opinions to a reasonable degree of certainty in

179

Id. at 267.

180

Id.

181

Id. at 268.

182

J.A. 290.

33

your field about where the device was during

this period of time?

Fuller: The device is located at [2-6 John]

during this period and it appeared -- it has a

higher concentration of points in the southwest

corner of [2 John] than any other place in the

building.

Question: Can you reach an expert opinion

based on just one of these ellipses?

Fuller: It would be difficult based on a single

point to make a determination of a definitive

nature. The overlapping of these points and the

combination of these points increases the

confidence in the estimate that it’s at this

location. In essence, the probability increases as

you get more of these overlapping one another.

Question: And where are the vast majority of

the overlapping ellipses?

Fuller: In the southwest corner of [2-6 John].

Question: Have you reached an opinion as to

whether or not the device was inside the

building?

Fuller: The most logical place would purport to

be inside the building. Two other alternates

could exist. One, it was on top of the building, it

was on the roof. The data does not necessarily

confirm or rule that out, . . . or conceivably,

since I’m not showing altitude here, it could be

underneath the building as well.

Underneath the building is far less likely

. . . . It just seems to make more sense to be

inside the structure than on top of it from a --

from a time perspective, since we’re only

talking about a minute and a half, as well as just

the physical access portion of it.

34

Question: So, just to clarify, Dr. Fuller, when

you say outside, you’re talking about literally

on top?

Fuller: On top of the house, correct. On top of

it as compared to inside the building.183

When questioned about his opinion that the “most logical

place” for the GPS to have been was inside the house, Fuller

explained that he based his opinion on the “preponderance of

points overlapping one another directly inside the enclosure

or the visual enclosure of this building, the area covered by

that structure, as well as the confidence of the data level, the

signal quality during this period of the track.”184 Fuller never

described 2-6 John with reference to specific rooms. Instead,

he used directional terms (“southwest corner”) to describe the

GPS’s location. Again, Exhibit 534A depicted 2-6 John

Avenue as follows:

To aid jurors in interpreting this location data,

Lieutenant Gomez testified that Fulton’s room was located

183

Id. at 293-95 (emphasis added).

184

Id. at 296-97.

35

exactly where the majority of the overlapping ellipses

appeared. When shown Exhibit 534A, Gomez testified that

Fulton’s room was in “the back left corner of [2 John

Avenue].”185

Fulton claims that Gomez’s testimony was incorrect

and misleading186 because Fulton’s room was located in what

is more accurately described as the upper left hand corner of

the lower half of 2-6 John. From the trial transcript it is

difficult to tell whether Gomez’s testimony was inaccurate.

Generally speaking, Fulton’s room is in the lower left hand

corner. When Government Exhibit 534A is broken into 4

quadrants, Fulton’s room is in the lower left hand quadrant.

During its summation, the government further relied

on Fuller’s testimony to argue that the GPS was in Fulton’s

bedroom for ninety seconds. More specifically, the prosecutor

stated:

the GPS tracking device was in the defendant’s

bedroom, inside the defendant’s house for

approximately 90 seconds, reporting every six

to eight seconds. We heard Dr. Fuller tell us

again and again and again right over the

defendant’s bedroom.187

And during rebuttal argument, the government repeated:

“[Fuller’s] analysis told him in his expert opinion, based on

his 20 years in the field, that the device was in the defendant’s

bedroom. That is uncontradicted testimony.”188

Fulton also argues that this testimony is incorrect.

While Fulton is technically right that Fuller never testified

that the GPS was in his bedroom, Fuller did testify that the

“most logical place” for the GPS to have been was the

southwest corner of 2-6 John. As Government Exhibit 534A

demonstrated, this area included Fulton’s bedroom.

Therefore, the prosecutor’s argument was, at worst, a slight

mischaracterization of Fuller’s testimony. However, it was a

fair inference based on that testimony.

185

Id. at 776.

186

Appellant’s Br. at 38.

187

J.A. 1110.

188

Id. at 1155.

36

B.

Fulton argues that the district court plainly erred in

failing to strike the government’s characterization of Fuller’s

testimony about the location of the GPS in closing. We

disagree. It is fundamental that counsel may “argue

reasonable inferences from the evidence,” but may not

“misstate evidence.”189 A prosecutor’s misstatement of the

evidence can “‘so infect[] the trial with unfairness as to make

the resulting conviction a denial of due process.’”190 To

determine whether a prosecutor’s comments deprived a

defendant of a fair trial requiring reversal, an appellate court

must consider the “offensive actions in context and in light of

the entire trial, assessing the severity of the conduct, the

effect of the curative instructions, and the quantum of

evidence against the defendant.”191 Furthermore, where the

appellant did not object to the contested statements at trial, as

is the case here, our standard of review is even more

deferential. Therefore, even if Fulton can show that a legal

error occurred, he must also show that this error was plain or

189

United States v. Carter, 236 F.3d 777, 784 (6th Cir. 2001);

see also United States v. Watson, 171 F.3d 695, 699 (D.C.

Cir. 1999) (“It is error for counsel to make statements in

closing argument unsupported by evidence, to misstate

admitted evidence, or to misquote a witness’ testimony.”).

190

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)); see United

States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992) (“[A]

single misstep on the part of the prosecutor may be so

destructive of the right to a fair trial that reversal is

mandated.” (internal quotation marks omitted)).

191

Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001); United

States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en

banc) (in assessing the prejudice of a prosecutor’s improper

comments during closing argument, this Court considers “the

scope of the objectionable comments and their relationship to

the entire proceeding, the ameliorative effect of any curative

instructions given, and the strength of the evidence supporting

the defendant’s conviction”).

37

obvious,192 and affected “the fairness, integrity or public

reputation of judicial proceedings.”193 As we have explained,

“‘In order to demonstrate prosecutorial misconduct under a

plain error standard, the review must reveal egregious error or

a manifest miscarriage of justice.’”194

Fulton argues that the government made three errors in

closing: First, as just discussed, he contends that the

government erroneously stated that the GPS was in Fulton’s

bedroom for ninety seconds. In reality, the device was fully

inside the residence for sixty seconds—during the other thirty

seconds, the GPS was transported from outside the house to

inside. Next, Fulton argues that the government mistakenly

stated that Fuller testified the GPS was in Fulton’s room. We

have already explained that Fuller actually testified that the

GPS was most likely in the general area where Fulton’s

bedroom, the kitchen, and bathroom were located. Finally,

Fulton contends that the prosecution misrepresented the

precision of the GPS data to the jury. According to Fulton, a

more accurate restatement of Fuller’s testimony would be

“the device was, (1) for approximately one minute, (2) in the

southwest portion of the building, with the understanding that

(3) there was a 32% chance that it was not in any given ‘error

ellipse,’ that (4) the data could not tell whether it was inside,

underneath, or on top of the building, and that (5) because it

was moving either very slowly or not at all during that time,

uncertainty about the device’s position was increased.”195

Fulton contends that, collectively, these errors deprived him

of a fair trial.

In support of this position, Fulton first cites United

States v. Watson.196 There, the court of appeals for the D.C.

Circuit held a prosecutor’s misstatements were sufficiently

prejudicial to warrant a new trial. The critical issue in Watson

was whether the defendant, Watson, had a connection to

192

United States v. Marcus, 560 U.S. 258, 262 (2010)

(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

193

Id.

194

United States v. Brennan, 326 F.3d 176, 182 (3d Cir.

2003) (quoting United States v. Brown, 254 F.3d 454, 458 (3d

Cir. 2001) (internal quotations marks omitted)).

195

Appellant’s Br. at 41.

196

171 F.3d 695 (D.C. Cir. 1999).

38

drugs found in a car.197 Watson did not own the car, and no

witness or fingerprint evidence placed him in the car.198 To

establish a connection between Watson and the car, the

government relied on (1) a key to the car that the police found

on Watson when he was arrested, (2) a bag from a store that

was found in the car and contained crack, and (3) a receipt

from that store found in Watson’s home.199 Defense

witnesses, however, testified that Watson was in church for

the part of the evening in question and disputed police

testimony that Watson had the car key when he was

arrested.200 Defense witnesses connected another man,

Hawkins, to the car and the key at the relevant time.201

In an attempt to strengthen Watson’s connection to the

car, the government tried to establish that the car’s registered

owner, Tyra Jackson, was Watson’s girlfriend.202 In doing so,

however, the prosecution asked a witness (Mr. Thomas) a

compound question which (1) assumed a fact not in evidence,

i.e., that Jackson was Watson’s girlfriend, and (2) made the

witness’s response ambiguous: “Mr. Thomas, you believe that

you know Watson’s girlfriend, Tyra Jackson, right?” To

which Thomas replied: “I never testified I knew her or

not.”203 The prosecutor then asked, “You believe that you

may have met her once or twice, right?” Thomas’s response:

“Maybe.”204 In closing, the prosecutor purported to quote

Thomas and told the jury that Jackson was Watson’s

girlfriend, therein establishing a stronger connection between

Watson and the car than the disputed evidence of the key and

the store receipt.205 The prosecutor repeated the point during

rebuttal argument. Despite this material misstatement of the

evidence, the district court provided only the “standard

197

Id. at 697.

198

Id.

199

Id.

200

Id.

201

Id.

202

Id. at 697, 698-99.

203

Id. at 699.

204

Id.

205

Id.

39

instructions that counsel’s questions, statements, and

arguments are not evidence.”206

On appeal, the court held that the statements clearly

misstated the evidence and these misstatements prejudiced the

defendant.207 “[T]he case was close, and credibility was

key.”208 In so holding, the court applied a three-factor test

considering “the closeness of the case, the centrality of the

issue affected by the error, and the steps taken to mitigate the

effects of the error.”209 The court also clarified that, unlike in

our circuit, “this test applies regardless of whether our review

is for harmless error or plain error.”210 The court then

concluded that the error warranted reversal because:

witnesses offered different versions of key events, the other

evidence linking Watson to the car was weak, and the

testimony at issue pertained to a critical issue—whether

Watson had a connection to the car.211 The court also held

that the district court’s standard jury instructions explaining

that counsel’s questions and arguments were not evidence

were insufficient to mitigate the prejudice.212 There, the trial

court’s error “went to the heart of the government’s case on a

matter with respect to which the government had no other

weighty evidence.” Thus, the defendant had “demonstrated

substantial prejudice warranting a new trial.”213

Fulton also relies upon our decision in United States v.

Mastrangelo.214 There, the government charged the defendant

with conspiracy to manufacture methamphetamine. The

parties stipulated that the defendant “had the chemical

206

Id.

207

Id. at 700.

208

Id.

209

Id. (noting the test for prejudice has also been framed “‘in

terms of the severity of the prosecutor’s misconduct, the

measures adopted to cure the misconduct, and the certainty of

conviction absent the improper remarks’” (quoting United

States v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998)

(internal quotation marks omitted))).

210

Id.

211

Id. at 700-01.

212

Id. at 701-02.

213

Id. at 702.

214

172 F.3d 288, 295-98 (3d Cir. 1999).

40

background to know the ingredients and equipment necessary

to make methamphetamine.”215 But the defendant denied

knowing how to make the drug, and the government did not

present evidence proving this fact. Nevertheless, in closing

argument, the prosecutor erroneously stated that the

defendant knew how to make the drug: the defendant “had the

knowledge, the knowledge to either make it—make the

methamphetamine or to tell someone else how to make it.”216

The prosecutor repeated this statement multiple times. Based

on these misstatements, the defense moved for a mistrial. But

the district court denied the motion.

Instead, the trial court gave the following jury

instruction:

The parties stipulated that the defendant had the

chemical background to make

methamphetamine. The Government, [] in its

closing made reference to the fact [that] there

was no evidence presented that anyone else had

this chemical background and that therefore by

inference the defendant, since he possessed this

knowledge, must necessarily have been the

maker. Such an inference is improper and

should be stricken from your minds. There was

no burden on the defense to produce evidence

that no one else did or did not possess chemical

knowledge to make methamphetamine.

Furthermore, there is no evidence in this case

that no one else did not have the knowledge to

make methamphetamine.217

However, we recognized that the district court’s curative

instruction misstated the stipulation. It repeated the

prosecutor’s mistakes, therein compounding the error (“The

215

Id. at 294.

216

Id. at 296 (emphasis in original, internal quotation marks

omitted).

217

Id. (emphasis in original, internal quotation marks

omitted).

41

parties stipulated that the defendant had the chemical

background to make methamphetamine.”).218

We concluded that the “impropriety of these

statements is evident.”219

They distort the substance of the Stipulation,

inflating the limited stipulation that

Mastrangelo had the chemical background to

know the ingredients and equipment necessary

to make methamphetamine to encompass a

meaning that the District Court had previously

ruled unwarranted, i.e., that because of his

knowledge of the ingredients and equipment

needed, Mastrangelo knew how to make

methamphetamine.220

We further noted that although “[a]rguably, a clear and

forceful curative instruction from the District Court might

have cured the potentially devastating effect of the

prosecutor’s misrepresentations,” the district court’s own

misstatement of the stipulation “if it did not further confuse

the jury, certainly did not effect a cure.”221

We therefore found clear error and focused on whether

the error was prejudicial. We looked at familiar factors: “the

scope of the improper comments in the overall trial context,

the effect of any curative instructions given, and the strength

of the evidence against the defendant.”222 We found the

repeated misrepresentations “central,” the attempted curative

instruction faulty, and the other evidence less than

overwhelming.223 Accordingly, we concluded that the errors

218

Id. (emphasis in original).

219

Id.

220

Id. Common sense illustrates how egregious the error in

Mastrangelo was. The fact that someone knows that H2O is

the chemical composition of water does not establish that she

knows how to combine hydrogen and oxygen in a laboratory

to produce water.

221

Id. at 298.

222

Id. at 297 (citing United States v. Zehrbach, 47 F.3d 1252,

1265 (3d Cir. 1995) (en banc)).

223

Id. at 297-98.

42

pertaining to the stipulation were not harmless and remanded

for a new trial.224

Fulton relies on these two cases to argue that the

government’s statements regarding the GPS evidence were

erroneous and prejudicial. Like Watson and Mastrangelo, this

case turns on the contested evidence. Fulton argues that the

government would not have had much of a case against him

without the GPS evidence. The prosecution had no clear

surveillance footage, eyewitness identifications, or physical

evidence linking the GPS or money to Fulton. In addition, the

defense raised a strong inference that someone else (Barnes)

might be responsible for the crime. Defense counsel further

offered testimony from witnesses intimately familiar with

Fulton’s appearance that Fulton did not look like the man in

the security footage. Therefore, according to Fulton, the

government’s case came down to establishing where the GPS

was immediately after the robbery.

The prosecutor first stated that the GPS device “was in

the defendant’s bedroom, inside the defendant’s house for

approximately 90 seconds.”225 The prosecutor then

characterized Fuller’s testimony as stating “again and again”

that the GPS was “right over the defendant’s bedroom.”226

Finally, in rebuttal, the prosecutor repeated that “[Fuller’s]

analysis told him in his expert opinion, based on his 20 years

in the field, that the device was in the defendant’s bedroom.

That is uncontradicted testimony.”227

As we have just explained, Fuller never stated that the

GPS was in Fulton’s room or “over” Fulton’s bedroom

verbatim. However, he did testify that the GPS appeared to be

in the “southwest” corner of 2-6 John for about sixty seconds,

and moving into or out of that portion of the house for an

additional thirty seconds. This southwest corner includes

Fulton’s bedroom and his shared kitchen. Therefore, a

perfectly accurate summation of Fuller’s testimony would

have been: “Fuller told us the GPS was inside a portion of [2-

6 John] that contained Fulton’s room and Fulton’s kitchen for

224

Id. at 298.

225

J.A. 1110.

226

Id.

227

Id. at 1155.

43

60 seconds, and moving into or out of that portion of the

house for an additional 30 seconds.”

Nevertheless, we do not think it improper to infer from

Fuller’s testimony that the GPS was in the defendant’s

room.228 The GPS data did indicate that the GPS was in, on

top of, or below an area that included Fulton’s room for

approximately sixty seconds. Furthermore, Fuller testified

that the GPS was most likely not below the house, and it

seems improbable that it had been on top of the house. It was

certainly reasonable to argue that the GPS was inside the

house, likely in Fulton’s room. The error here was that the

prosecutor inaccurately ascribed precision to Fuller’s

testimony.

This error is not as significant as those in Watson and

Mastrangelo. In Watson, the prosecution’s error created a

connection between the defendant and a key piece of

evidence that was completely unsupported by the record. In

Mastrangelo, the prosecution unfairly ascribed crucial

knowledge to the defendants that was not supported by the

evidence. Here, the prosecution’s statement was a reasonable

inference drawn from Fuller’s testimony. A perfectly accurate

summation of Fuller’s testimony still inculpates Fulton. The

statement “Dr. Fuller’s analysis lead him to conclude, in his

expert opinion, that the GPS was inside a portion of [2-6

John] compromised of Fulton’s room and a kitchen Fulton

shared,” is not much weaker evidence of Fulton’s guilt than

the statement “[Dr. Fuller’s] analysis concluded in his expert

opinion . . . that the device was in the defendant’s bedroom.”

Therefore, it is highly unlikely that the prosecution’s

misstatement altered the outcome of the trial.

228

It is well-settled that the Government “‘is entitled to

considerable latitude in summation to argue the evidence and

any reasonable inferences that can be drawn from that

evidence.’” United States v. Lee, 612 F.3d 170, 194 (3d Cir.

2010) (quoting United States v. Werme, 939 F.2d 108, 117

(3d Cir. 1991)). The government “may ‘ask the jury to draw

permissible inferences from anything that appears in the

record.’” United States v. Sullivan, 803 F.2d 87, 91 (3d Cir.

1986) (quoting Oliver v. Zimmerman, 720 F.2d 766, 770 (3d

Cir. 1983)).

44

Similarly, the prosecution’s statement that the GPS

spent ninety seconds inside Fulton’s room when, in reality,

the GPS was only fully inside (over or under) that portion of

the house for sixty seconds, and moving into or out of (over

or under) the house for an additional thirty seconds is hardly

prejudicial. In Watson and Mastrangelo, the absence of the

prosecution’s misstatement would have seriously weakened

the government’s case. Not so here. It is highly probative that

the GPS was in Fulton’s half of the house at all, whether for

sixty seconds or ninety seconds.

Moreover, defense counsel was willing to rest on the

court’s general jury instruction that jurors must find the facts

for themselves based upon their recollection of the evidence.

Following the government’s rebuttal summation, Fulton

raised a concern about other portions of the government’s

argument, claiming that there was no evidence to support

them.229 Defense counsel clarified, however: “I’m not asking

for a curative instruction, your Honor, because I am aware of

the Court’s standard instruction with regards to opening

statements and closing statements.”230 Had Fulton objected,

the court could have clarified that Fuller’s testimony placed

the GPS in the southwest portion of the residence, which

undisputedly contained Fulton’s bedroom.

Finally, to the extent that Fulton suggests the

prosecution erred in stating that the GPS was in Fulton’s

room because the GPS data does not permit this type of

location accuracy, it was incumbent on defense counsel to

stress that limitation during his summation. Although litigants

cannot misrepresent evidence, they are not required to

affirmatively point out limitations in the scope of their

evidence. Fulton was free to contradict the prosecution’s

argument that the GPS was in Fulton’s room based on the

data accuracy.

In assessing the prejudice of the prosecutor’s

comments during closing argument, we must consider “the

scope of the objectionable comments and their relationship to

the entire proceeding, the ameliorative effect of any curative

instructions given, and the strength of the evidence supporting

229

J.A. 1159-60.

230

J.A. 1160.

45

the defendant’s conviction.”231 The GPS evidence here was

strong, even without the prosecution’s slight

mischaracterization. Indeed, it is not at all obvious that

clarifying the limited scope of Fuller’s testimony or offering

more precise instructions regarding what Fuller actually said

would have aided the defense at all. In fact, it may have only

emphasized evidence that established the probability that the

GPS had been taken to Fulton’s portion of the residence.

Accordingly, we conclude that no legal error occurred insofar

as the prosecutor’s summation is concerned. Moreover,

even if an error did occur, it did not rise to the level required

for us to find plain error.

IV.

Finally, Fulton argues that the district court’s errors,

when combined, influenced the outcome of the trial. On a

cumulative error challenge, a new trial is required “only when

the errors, when combined, so infected the jury’s

deliberations that they had a substantial influence on the

outcome of the trial.”232 Because Fulton did not raise this

challenge before the district court, we review for plain error.

The district court erred in admitting Scartozzi’s lay

opinion testimony regarding whether Barnes was on the

phone during the robbery. The court also erred in admitting

Scartozzi and Gomez’s lay opinion testimony regarding the

comparative appearances of Fulton, Barnes, and the robber.

But it is clear from our review of this record that these errors

did not deprive Fulton of a fair trial. As we have explained,

the jurors listened to testimony explaining that the call to

Barnes’ phone went to voicemail. Therefore, they were free to

credit this testimony over that of Scartozzi. The jurors could

also determine for themselves whether Fulton or Barnes

looked more like the perpetrator captured in the surveillance

footage. The evidence presented at trial was strong enough to

prevent the case from turning on any propensity the jurors

231

United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir.

1995) (en banc).

232

United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir.

1994) (internal alteration, quotation marks, and citation

omitted).

46

may have had to unduly credit such testimony from law

enforcement officers.

Furthermore, the testimony regarding the location of

the GPS indicated that it spent time in, above, or below

Fulton’s half of the house for significantly more time than it

was in, below, or above Barnes’ half. Most damning of all,

Fulton called his girlfriend’s sister and mentioned the robbery

immediately after the GPS was smashed and before police

had arrived in his neighborhood. This call was very strong

circumstantial evidence of Fulton’s guilt. This evidence

would not have been sufficient, by itself, to prove Fulton’s

guilt beyond a reasonable doubt. But when considered

together with all of the other evidence in this case, that phone

call pointed a very strong finger of guilt directly at Fulton.

Therefore, even without Scartozzi and Gomez’s

testimony on the Barnes’ call and Fulton and Barnes’

appearances, the government’s case against Fulton was

sufficient to establish guilt. Accordingly, reviewing the

district court’s decision for plain error, we hold that the

cumulative effect of the district court’s errors does not

necessitate reversal.

47

Smith, J., concurring:

I concur in the judgment of the court and in the

majority’s analysis of every issue except its conclusion that

portions of the lay opinion testimony of officers Gomez and

Scartozzi were improperly admitted. The majority holds that

much of the lay opinion testimony of both officers was

improper because it was not helpful to the jury as required by

Federal Rule of Evidence 701. I disagree and thus write

separately on this issue.

Lay opinion testimony is admissible as long as it is

“(a) rationally based on the witness’s perception; (b) helpful

to clearly understanding the witness’s testimony or to

determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge within the scope of

Rule 702.” Fed. R. Evid. 701. In Asplundh Manufacturing

Division v. Benton Harbor Engineering, we held that “[t]he

prototypical example of the type of evidence contemplated by

the adoption of Rule 701 relates to the appearance of persons

or things, identity, the manner of conduct, . . . sound, size,

weight, distance, and an endless number of items that cannot

be described factually in words apart from inferences.” 57

F.3d 1190, 1196 (3d Cir. 1995).

I believe the testimony elicited from both officers was

very probative and helped the jury assess the quality and

thoroughness of the officers’ investigation in this case. This

is a crucial issue given Fulton’s argument at trial that the

police bungled their investigation by too quickly ruling out

other potential suspects. Fulton specifically suggested that

his neighbor Mr. Barnes—a man of similar height and

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(somewhat) similar stature—could have been the bank

robber. In light of the GPS evidence presented in this case

placing the tracker in the building where both men lived, this

appears to have been Fulton’s best defense. In response to

this claim, the prosecution elicited testimony from the two

officers who conducted the investigation to show—as the

questioning made clear—why the elimination of Barnes as a

suspect was based on sound police work and was certainly

not “hasty.”1

Indeed, we look no further than the beginning of the

prosecution’s key line of questioning, which begins with a

very relevant query: “why did you [officer Scartozzi]

eliminate [Barnes]” as a suspect? In response, Scartozzi

explained that he eliminated Barnes because (1) “Ricardo

Barnes did not match the physical descriptors of the bank

robbery,” (2) Barnes’ phone data shows that he received a call

at the exact time as the robbery, and (3) “Sprint PCMD data

indicated that during the time of the bank robbery . . .

[Barnes] was not near the bank,” This testimony helped the

jury determine whether Scartozzi’s investigation of Barnes

was sufficiently thorough.

The majority rejects this position and instead contends

that this testimony did not just “shed light on the

thoroughness” of the police investigation but instead

“provided a definitive interpretation of a crucial disputed

fact—whether Barnes could have committed the robbery.” I

fully acknowledge that when “the jury has before it the same

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Whether this was, in fact, a thorough investigation was a

question left for the jury.

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circumstantial evidence . . . on which a witness bases an

opinion concerning a defendant’s knowledge, testimony from

a witness . . . [on that issue] usually will not meet Rule

701(b)’s helpfulness requirement,” United States v.

Anderskow, 88 F.3d 245, 250 (3d Cir. 1996), That, however,

is not the case here. The officers’ testimony addressed an

issue solely within the knowledge of the officers’ themselves:

how thorough was their investigation? They alone could

offer testimony as to the steps they took in ruling out Barnes

as a suspect.

As we have explained on several occasions, the

Federal Rules of Evidence suggest a “generally liberal

approach to the admissibility of evidence.” In re Unisys Sav.

Plan Litig., 173 F.3d 145, 167 (3d Cir. 1999); see also

Forrest v. Beloit Corp., 424 F.3d 344, 355 (3d Cir. 2005)

(“Under the Federal Rules of Evidence, subject to certain

limitations, all evidence is admissible if it is relevant.”). I

thus believe that admission of this testimony better comports

with both the general admissibility standards laid out in the

federal rules and our long-held view that “[t]he modern trend

favors the admission of opinion testimony, provided that it is

well founded on personal knowledge and susceptible to

specific cross-examination.” Teen-Ed, Inc. v. Kimball Int’l,

Inc., 620 F.2d 399, 403 (3d Cir. 1980); see also Lauria v.

Nat’l R.R. Passenger Corp., 145 F.3d 593, 600-01 (3d Cir.

1998) (“As long as the circumstances can be presented with

greater clarity by stating an opinion, then that opinion is

helpful to the trier of fact.” (internal citations and quotation

marks omitted)).

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I similarly take issue with the majority’s suggestion

that the testimony here could have been admitted if Officer

Scartozzi had stated that he discounted Barnes as a suspect

because he assumed Barnes was on the phone based on the

evidence he considered. This minor tweak seems to be of

little legal significance as here it was certainly clear to the

jury based on the testimony elicited—and indeed it was made

crystal clear on cross-examination—that Scartozzi never

physically saw Barnes talking on the phone at some other

location while the robbery was taking place at the PNC Bank.

Instead, the jury was made aware through his testimony that

Scartozzi could only have assumed (or rather, inferred) that

Barnes was on the phone during the robbery based on his

review of the phone logs. Whether this was a proper

inference was a contested issue for the jury to decide. I

would thus have concluded that Scartozzi’s statement:

“Barnes was on the phone during the robbery” was

sufficiently similar to (and really, mere shorthand for) the

more precise statement: “my investigation led me to infer that

Barnes was on the phone during the robbery,” for us to

conclude that the testimony given was appropriate.

Accordingly, I would have upheld the District Court’s

admission of the officers’ lay opinion testimony. That said, I

concur in the judgment.

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