NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2599 _____________

UNITED STATES OF AMERICA

v.

MARCUS JONES, a/k/a J-Rock

Marcus Jones, Appellant _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-12-cr-00314-001) District Judge: Honorable Joel H. Slomsky

Argued: April 9, 2018

Before: CHAGARES, VANASKIE, and FISHER, Circuit Judges.

(Filed: June 11, 2018)

Jeremy C. Gelb [ARGUED] 834 Chestnut Street The Benjamin Franklin, Suite 206 Philadelphia, PA 19107 Counsel for Appellant

Louis D. Lappen United States Attorney Robert A. Zauzmer [ARGUED] Assistant United States Attorney Chief of Appeals Katherine E. Driscoll Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Appellees ________________

OPINION ________________

CHAGARES, Circuit Judge.

Marcus Jones appeals his conviction by a jury for conspiracy to commit Hobbs

Act robbery in violation of

(a), Hobbs Act robbery in violation of §

1951(a), and brandishing a firearm during a crime of violence in violation of

(c), in relation to an armed robbery. Jones argues that the District Court violated

Federal Rule of Evidence 404 by allowing the admission of evidence concerning another

robbery that Jones committed and Rule 701 by allowing a lay witness to offer opinion

testimony. We disagree, and therefore will affirm.

I.1

We write for the parties and so recount only the facts necessary to our decision.

Jones was arrested and charged with committing armed robberies of three Philadelphia

stores over a ten-day period in March 2012: Peralta Grocery Store, Aya’s Pizza, and

Golden Kingdom II Restaurant. Maleek Brown and Jonte King were likewise charged

with robbing Peralta and Golden Kingdom, and pleaded guilty. Jones pleaded guilty to

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 1 The District Court had jurisdiction under

; this Court has jurisdiction under

. 2 the Aya’s robbery but proceeded to trial on the Peralta and Golden Kingdom robberies.

As part of his plea deal, Brown testified that he, King, and Jones robbed Peralta and that

Jones had admitted that he (Jones) also robbed Aya’s and Golden Kingdom.

At trial, Harold Brokenborough, an Aya’s employee working at the time of the

robbery, testified that an African-American man wearing a hoodie pulled a gun on the

clerk and stole money from the cash register before escaping. He added that he later

identified Jones in a photo array. Victor Tejada, Peralta’s manager, testified that he was

robbed by two African-American men, one of whom wore black shoes with a neon stripe.

The Government also presented the testimony of Philadelphia Police Detective

Kert Wilson, who prepared a “Wanted” poster from the Aya’s surveillance video and

took photos of the clothes Jones was wearing when he was arrested and juxtaposed them

to images from the Peralta robbery, to show whether the seized items matched the Peralta

robber’s clothes.2 Wilson testified that, in his experience, surveillance videos skew the

colors they record, so to better determine whether Jones’ shoes matched those in the

Peralta video, he walked through Peralta wearing the shoes and compared that video with

the robbery video to see if the shoes’ coloring appeared the same through the medium of

the recording. He said the comparison looked “just spot on.” Appendix (“App.”) 612.

Jones was convicted of the Peralta robbery but acquitted of the Golden Kingdom

robbery. The District Court denied his motion for a new trial and Jones timely appealed.

2 Jones was arrested wearing shoes with a neon yellow stripe and jeans with markings that appeared to match those of the Aya’s robber. Police noticed this similarity, and therefore seized the shoes and jeans to compare them to those visible in the video of the Aya’s robbery. 3 II.

Jones claims that the Government introduced evidence related to the Aya’s

robbery (which Jones admitted to) in violation of Federal Rule of Evidence 404’s

prohibition on the use of propensity evidence. Rule 404 prohibits the admission of a

defendant’s prior crime “to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.” Fed. R. Evid.

404(b)(1). Such evidence, however, “may be admissible for another purpose, such as

proving . . . identity.”

(b)(2). For evidence of past crimes to be admissible under

Rule 404(b), it “must (1) have a proper evidentiary purpose; (2) be relevant; (3) satisfy

Rule 403; and (4) be accompanied by a limiting instruction (where requested) about the

purpose for which the jury may consider it.” United States v. Green,

(3d Cir. 2010). “To meet the first requirement for admissibility, the proponents of Rule

404(b) evidence must do more than conjure up a proper purpose — they must also

establish a chain of inferences no link of which is based on a propensity inference.”

United States v. Smith,

(3d Cir. 2013). We review rulings under Rule

404 for abuse of discretion. United States v. Repak,

(3d Cir. 2017).

Jones does not challenge the evidence’s relevance, and the District Court twice

gave the jury limiting instructions, so we consider only the test’s first and third prongs.

A.

The District Court properly allowed the Government to introduce evidence

concerning Jones’ involvement in the Aya’s robbery for two non-propensity purposes:

(1) to establish Jones’ identity as the Peralta robber and (2) to corroborate the credibility

4 of Brown’s testimony identifying Jones as the Peralta robber. See Fed. R. Evid.

404(b)(1); Green,

(prior bad acts admissible to bolster witness

credibility). Jones argues that the evidence nevertheless fails the 404(b) test because a

reasonable jury informed that Jones committed another robbery in the timeframe of the

charged robberies would infer Jones’ propensity to commit robberies, and that the jury

here was “invited to draw” that very inference. Jones Br. 20. But this is an objection to

Rule 404(b) itself, not its application. See, e.g., Smith,

(recognizing that

“all Rule 404(b) evidence . . . will invite the jury to make inferences about [the

defendant’s] character” but that “[t]his alone cannot lead to exclusion”). Jones does not

claim that any link in the chain of inferences supporting the introduction of the evidence

relies on a propensity inference. The Government accordingly established a proper

purpose for the introduction of the Aya’s evidence, even though the jury could have

theoretically drawn improper propensity inferences, as well.

B.

Rule 403 provides that relevant evidence may be excluded “if its probative value

is substantially outweighed by a danger of . . . unfair prejudice.” Before admitting prior

bad acts under Rule 404(b), district courts must — explicitly and on the record —

“balance the probative value of the proffered evidence against its prejudicial effect under

Rule 403.” United States v. Caldwell,

(3d Cir. 2014). Where a court

“merely recites the text” of Rule 403, we cannot infer that it properly engaged in such

balancing,

, and must reverse unless “it is ‘apparent from the record’” that the

evidence satisfies Rule 403, Repak,

(quoting Caldwell,

).

5 Jones generally objects to the introduction of any evidence concerning the Aya’s

robbery, but specifically focuses on the surveillance video. As to the broader objection,

as the Government made clear at oral argument, the probative value of the evidence was

substantial, given that it identified Jones as the Peralta robber. The District Court did not

abuse its discretion in determining that this value was not substantially outweighed by the

risk of unfair prejudice arising from the jury being apprised that Jones committed the

Aya’s robbery, to which Jones had admitted. Especially given the District Court’s two

cautionary instructions, which we presume the jury followed,3 we have little “concern

that the jury would have used this evidence to draw a propensity inference.”

Whether admitting the surveillance videos, in particular, also satisfies Rule 403,

however, presents a closer question. It is a matter of common sense that “probative value

is ‘informed by the availability of alternative means to present similar evidence.’” United

States v. Bailey,

(3d Cir. 2016) (quoting United States v. Awadallah,

(2d Cir. 2006)). At trial, Jones argued that the Government did not

need to show any video from Aya’s. To support the credibility of Brown, who testified

that Jones told him that the Aya’s clerk had demanded that Jones remove his hoodie, the

Government could have relied on the photos showing Jones in Aya’s wearing a hoodie,

which had already been admitted into evidence. And to prove that Jones was the Peralta

robber, by showing that the Aya’s robber (Jones) wore the same distinctive shoes as the

3 This presumption is especially strong because the jury acquitted Jones of the Golden Kingdom robbery, indicating that it followed its instructions and did not draw the propensity inference that, once a robber, Jones was guilty of all the charged robberies. 6 Peralta robber, the Government could have relied on the images and reenactment footage

created from the shoes that police had seized from Jones upon his arrest.

Aside from its initial statement that, as a general matter, the “probative value” of

the video “would not be substantially outweighed by the danger of unfair prejudice,”

App. 20, the District Court did not explicitly undertake a Rule 403 analysis in light of

Jones’ objections. The court’s recitation of the legal standard does not indicate that it

properly engaged in weighing and so is alone insufficient to warrant our deference. See

United States v. Sampson,

(3d Cir. 1992). Nevertheless, the record

reflects the District Court’s attention to the potential prejudice involved in showing the

videos, and we conclude that it did not err by permitting the videos’ introduction.

For the purposes of corroborating Brown’s testimony, the Government proposed a

lengthy clip of Jones entering Aya’s, talking with the clerk, jumping over the counter,

and robbing the store. The District Court concluded that such a long clip would be

“unduly prejudicial . . . especially since the defense has conceded that . . . Mr. Jones did

the Aya’s robbery,” and limited the video to just showing Jones wearing the hoodie and

talking to the clerk, which it concluded “does in some way support [Brown’s]

credibility.” App. 402–03. The prejudice from the short video is not materially different

than from the images showing Jones in a hoodie. Moreover, the video — which showed

Jones talking to the clerk — corroborated Brown’s testimony in a way the images did not,

by showing that the clerk and Jones spoke. Its admission was proper under Rule 403.

Concerning the clip meant to show Jones’ shoes in the Aya’s robbery, in light of

the defense’s argument that it would be prejudicial to show Jones brandishing a gun, the

7 District Court limited the footage to showing Jones’ shoes without the gun. Although the

clip shown to the jury depicted Jones “vaulting himself up onto the counter,” App. 457,

and despite our view that identity was equally well established by Detective Wilson’s

reenactment video or by side-by-side photos of the shoes from each video, we conclude

under our own plenary Rule 403 analysis that the unfair prejudice resulting therefrom did

not substantially outweigh the video’s probative value. First, the footage of Jones

jumping over the counter was not “the kind of highly reprehensible and offensive content

that might lead a jury to convict because it thinks that the defendant is a bad person and

deserves punishment, regardless of whether the defendant committed the charged crime.”

United States v. Cunningham,

(3d Cir. 2012) (quoting United States v.

Loughry,

(7th Cir. 2011)). With the gun redacted, the video showed

no violence and thus was unlikely to have any more meaningfully impacted the jury than

images taken of Jones while he committed the robbery. Second, as noted, the District

Court twice explicitly cautioned the jury against using the evidence to establish Jones’

propensity to commit the charged robberies, which further minimizes the risk that the

evidence prejudiced Jones. The video’s admission was consistent with Rule 403. Thus,

neither clip violated Rule 404.

III.

Jones also contends that Detective Wilson twice violated Rule 701 by giving

improper opinion testimony that went to the ultimate question. First, Wilson, through an

apparent slip of the tongue, identified the suspect in the Peralta surveillance video as “the

defendant.” App. 606. Second, Wilson seemed to give his opinion that the depiction of

8 the color of Jones’ shoes (worn by Wilson) in the Peralta reenactment video matched the

color of the shoes worn by the Peralta robber in the surveillance video. We review a trial

court’s objected-to evidentiary rulings for abuse of discretion, Green,

,

and conclude that the District Court did not abuse its discretion by permitting the

challenged testimony and that, even if it did, any error was harmless.

Rule 701 permits lay witnesses to testify concerning their opinions to the extent

that those opinions are “rationally based on the witness’s perception,” are “helpful to

clearly understanding the witness’s testimony or to determining a fact in issue,” and are

“not based on scientific, technical, or other specialized knowledge within the scope of

Rule 702.” Fed. R. Evid. 701. Lay witnesses accordingly may not opine concerning

what conclusions to draw from the facts such that the testimony “usurps the jury’s role as

fact finder,” or offer an opinion which the witness is in no “better position than the jurors

to form.” United States v. Fulton,

, 291–92 (3d Cir. 2016). For that reason,

although lay witnesses are not per se barred from expressing opinions that “embrace[] an

ultimate issue,” such testimony is improper where “its primary value is to dictate a

certain conclusion.”

at 291 (quoting Fed. R. Evid. 704(a)).

Incidental to explaining the purpose of the comparison exhibit he made containing

stills from the Peralta video and photographs of Jones’ seized clothes, Wilson improperly

referred to the content of the Peralta video as depicting the “defendant.” Although this

statement went to the ultimate issue at trial, it is not fair to say that “its primary value”

was to do so.

From the perspective of the Government, Wilson’s stray remark had no

value, given that it was not purposefully elicited and was never repeated. Wilson was not

9 a case agent on the robbery but rather was brought on to recover the videos, and his

testimony was elicited for the purpose of laying the exhibits’ foundation. His opinions

concerning the robber’s identity were plainly of little interest to the Government, as

evidenced by the Government’s failure to repeat any of them in closing. Nor does it

appear to have been Wilson’s aim to tell the jury that Jones was the Peralta robber.

Although the purpose of his exhibits was to present this inference to the jury, it was not

his purpose when he remarked that the person in the video was the defendant to “tell the

jury what result to reach.”

at 294 (quoting United States v. Garcia,

(2d Cir. 2005)). Were that his purpose, it would be odd to convey that weighty

conclusion layered within a description of the manner of an exhibit’s preparation.

Concerning Wilson’s remark that the color of the shoes from his reenactment was

“just spot on” with the color in the robbery video, the record reflects that the Government

immediately clarified that Wilson was not opining about whether the shoes were indeed

the same, but just explaining the procedure that he undertook to make the comparison.

When the reenactment video was played, the Government again confirmed that the

purpose of the comparison “was just to show . . . the color of the shoe?” and Wilson

replied that he performed the comparison because “the color represented from what’s

recorded on the video isn’t quite represented in what’s in real life.” App. 621. Wilson

did not thereafter opine about whether Jones’ shoes were the ones depicted in the Peralta

video. The District Court ruled that Wilson’s “testimony doesn’t reach the point where

he’s telling the jury that, in my opinion, [the shoes are] the same,” App. 623, and

10 nonetheless gave the jury a limiting instruction that Wilson’s testimony was for the

purpose of comparison only and that the ultimate decision rested with the jury.

Jones retorts that the sole purpose of Wilson’s testimony and the comparison

videos he prepared “was [to] tell[] the jury that the items recovered from the Defendant

by the police were the same items depicted in the Peralta video.” Jones Br. 24. Jones

argues that Wilson’s testimony “went to the ultimate issue” because his testimony

“clearly communicated that the videos he created and the photographs he prepared were

done with the purpose of demonstrating to the jury that the shoes and pants recovered

from [Jones] by police were the same items depicted in the Peralta video.” Jones Br. 25–

26. Jones, however, fails to articulate why such a purpose would be improper. Of

course, all testimony presented by a party has the purpose of convincing the trier of fact

of the correctness of their position. A party may permissibly do so by presenting facts for

the jury to consider; they may not — through lay testimony — simply tell the jury what

result to reach. Here, in light of the prosecutor’s clarifications and the court’s limiting

instruction, the District Court did not abuse its discretion in concluding that Wilson’s

testimony did not stray beyond Rule 701’s limitations

Regardless, any error was harmless. An erroneous evidentiary ruling “is harmless

error when ‘it is highly probable that the error did not affect the result.’” United States v.

Friedman,

(3d Cir. 2011) (quoting Hill v. Laeisz,

(3d Cir. 2006)). As noted, the first statement was isolated, incidental, and never repeated

by the Government, while the second statement was immediately recanted and clarified;

the District Court gave a proper limiting instruction; and the Government’s case

11 regarding the Peralta robbery was very strong based on cooperating witnesses and video

evidence. We have little doubt that Wilson’s comments did not affect the jury’s verdict.

IV.

For the foregoing reasons, we will affirm.

12