NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________

No. 19-1757 _________________

UNITED STATES OF AMERICA,

v.

PATRICK WALKER,

Appellant _________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cr-00190-001) District Judge: Hon. Gerald J. Pappert _________________

Submitted Under Third Circuit L.A.R. 34.1(a) July 9, 2020

Before: McKEE, BIBAS, and FUENTES, Circuit Judges.

(Filed: August 28, 2020)

_________________

OPINION** _________________

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge.

Patrick Walker appeals his convictions for bribery1 and attempted possession with

intent to distribute marijuana.2 He contends that (i) the evidence presented at trial was

insufficient to prove attempted possession with intent to distribute marijuana; (ii) it was

error to admit a law enforcement agent’s “undesignated expert” testimony; and (iii) the

Government failed to properly authenticate two exhibits. For the following reasons, we

will affirm.

I. Background

In August 2016, law enforcement agents observed a United States mail carrier

provide Walker with a suspicious package.3 Agents did not immediately arrest Walker or

the mail carrier to avoid compromising their then-pending, separate investigation.

In January 2017, law enforcement agents questioned the mail carrier. Agents

uncovered that, within the past several months, the mail carrier diverted numerous

packages to Walker in exchange for money.4 The packages were not addressed to Walker,

but were instead addressed elsewhere. Agents also uncovered that Walker directed the

rerouting of the packages by calling the mail carrier to identify packages that should be

diverted and arranging a pick-up location on the mail carrier’s postal route. After

1

(b)(1)(A), (C). 2

and 841(a)(1), (b)(1)(D). 3 We will refer to Charles Walker as the “mail carrier” to avoid confusion with Appellant. 4 Indeed, the mail carrier admitted to diverting two packages to Walker on the day he was questioned by agents. 2 confessing to his role in this offense, the mail carrier agreed to cooperate with the

Government.

As part of his cooperation, agents began monitoring and recording the mail carrier’s

communications with Walker. Soon after, Walker called the mail carrier to obtain his work

schedule and provided details as to a package he was expecting. On January 12, 2017,

agents identified the package, applied for a search warrant, and, upon searching the

package, recovered marijuana. Over the coming weeks, Walker called and texted the mail

carrier to coordinate delivery of several additional packages.

Agents seized three packages containing marijuana on February 9, 2017 and, on

February 10, 2017, attempted a controlled delivery of those packages. The mail carrier

called Walker and suggested a location to meet and deliver the packages. Walker, however,

changed the meeting location and asked the mail carrier what he was driving. Because the

mail carrier was not driving his usual postal vehicle, Walker became suspicious that he was

being set up. Nevertheless, both proceeded to meet at Walker’s suggested location.

Walker, however, was not present and again changed the meeting location. The mail

carrier then informed Walker that if he wanted the packages, he would have to meet at

another location. Despite two subsequent phone conversations, Walker never showed up.

Walker was indicted on one count of bribery and two counts of attempted possession

with intent to distribute marijuana, based on the package recovered in January 2017 and

the February 10, 2017 packages that were the subject of the attempted controlled delivery.

At trial, the Government presented testimony from the mail carrier as to his

conversations and interactions with Walker. Several federal agents involved in the

3 investigation into Walker and the attempted controlled delivery also testified, including

Homeland Security Investigations Special Agent Jeffrey Kuc. Additionally, the

Government introduced the mail carrier’s personnel file and package tracking records

through the testimony of Girard Carrozza, a postmaster with the United States Postal

Service.

A jury acquitted Walker on the charge of attempted possession with intent to

distribute marijuana as to the January 2017 package, but convicted him of bribery and

attempted possession with intent to distribute marijuana as it related to the packages

involved in the February 10, 2017 attempted controlled delivery. This appeal followed.

II. Discussion

Walker brings three challenges to his conviction. First, he argues that the

Government failed to present sufficient evidence to establish that he took a “substantial

step” toward completing the crime of possession with intent to distribute marijuana.

Second, Walker challenges Agent Kuc’s testimony as “undesignated expert testimony” that

was irrelevant and unfairly prejudicial.5 Lastly, he argues that the District Court erred in

admitting the mail carrier’s personnel records and a spreadsheet reflecting packages

delivered to Walker during the relevant period because the documents were not properly

authenticated.

5 Walker Br. 5. 4 A. Sufficiency of the Evidence

The evidence at trial was sufficient to show that Walker took a substantial step

toward possessing the packages involved in the attempted controlled delivery.

“We review sufficiency of the evidence ‘in the light most favorable to the

prosecution’ to determine whether ‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’”6 The Court must “uphold the jury’s

verdict unless it ‘fall[s] below the threshold of bare rationality.’” 7 And “[r]eversing the

jury’s conclusion simply because another inference is possible—or even equally

plausible—is inconsistent with the proper inquiry for review of sufficiency of the evidence

challenges.”8

A person is guilty of an attempt to commit a crime when the defendant “(1) acted

with the requisite intent to violate the statute, and (2) performed an act that, under the

circumstances as he believes them to be, constitutes a substantial step in the commission

of the crime.”9 Walker does not contest the intent element; rather, he claims only that the

Government failed to prove that he took a substantial step toward possessing the marijuana

involved in the attempted controlled delivery. As relevant here, the “substantial step”

element requires something more than “mere preparation” but falls short of completion of

the offense.10

6 United States v. Garner,

(3d Cir. 2019) (quoting United States v. Caraballo-Rodriguez,

, 424–25 (3d Cir. 2013) (en banc)). 7

(alteration in original) (quoting Caraballo-Rodriguez,

). 8 Caraballo-Rodriguez,

. 9 United States v. Tykarsky,

(3d Cir. 2006). 10 United States v. Yousef,

(2d Cir. 2003). 5 Walker argues that he did not take a “substantial step” toward possession of the

February 10 packages because he took no action to meet with the mail carrier to collect the

packages. The record belies his claim. For days leading up to the attempted controlled

delivery, Walker called and texted the mail carrier seeking delivery of packages containing

marijuana. He provided the mail carrier with specific details regarding the packages and

instructions as to their delivery. On the day of the attempted controlled delivery, Walker

and the mail carrier engaged in numerous phone calls, Walker suggested two different

locations for their meeting, and he informed the mail carrier that he was in a store waiting

on him. That Walker failed to appear at the last agreed upon location and take possession

of the drugs because of his suspicions does not undermine all of the other actions that he

took in an attempt to possess the packages.11

Accordingly, we find that the evidence was sufficient for the jury to find that

Walker attempted to possess marijuana on February 10, 2017.12

11 See United States v. Pennyman,

(6th Cir. 1989) (“We conclude that a defendant may be found to have taken a ‘substantial step’ for the purpose of an attempt conviction though he or she has failed to gain possession of drugs or ‘sham’ drugs.”). 12 See United States v. Nestor,

, 161–62 (3d Cir. 2009) (finding that the defendant’s posting of an advertisement on Craigslist seeking sexual contact with children, his repeated interactions with an undercover officer posing as a parent, and e- mail and telephone communications discussing sexual contact with children were sufficient, individually and combined, to show that the defendant took “a substantial step towards persuading, inducing, enticing, or coercing a child to engage in sexual activity”). 6 B. Agent Kuc’s Testimony

Walker challenges the admission of Agent Kuc’s testimony on two grounds: (1)

that Agent Kuc testified as an expert without prior notice;13 and (2) that the testimony as

to his past experiences was irrelevant and unfairly prejudicial. We disagree.14

As relevant here, when asked generally about controlled deliveries, Agent Kuc

testified that there were safety concerns that must be accounted for and concerns that “the

defendant . . . would become aware of law enforcement’s involvement and try not to receive

the package.”15 He further testified that he had seen this happen “ a lot of times, the people

that we’re trying to deliver to . . . will move drop locations . . . from one spot to another”

and “[o]ftentimes, savvy . . . targets will move the location somewhere else, that they’d

control and we don’t have that control.”16 Agent Kuc also testified that Walker changed

the location of the meeting with the mail carrier, but he did not provide an opinion as to

why Walker had done so. Walker now argues that Agent Kuc’s “testimony regarding the

meeting place change predilections of persons in drug investigations constituted expert

testimony without being qualified by the Court to so testify.”17

13 See Fed. R. Crim. P. 16(a)(1)(G). 14 Because Walker did not challenge Agent Kuc’s testimony on the basis that it was improper expert testimony at trial, the challenge is reviewed for plain error. See United States v. Polishan,

(3d Cir. 2003). We may reverse a district court for a plain error only if we conclude (1) an error was committed, (2) it was plain, and (3) it affected the outcome of the proceedings. United States v. Olano,

, 733–34 (1993). His preserved evidentiary challenge to the relevance of the testimony is reviewed for abuse of discretion. See United States v. Davis,

(3d Cir. 2013). 15 App. 282–83. 16 App. 283–84. 17 Walker Br. 31. 7 Contrary to Walker’s characterization of Agent Kuc’s testimony, we find that the

testimony was permissible lay testimony. Rule 701 permits lay witnesses to testify

concerning their opinions if 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.”18 However, “we have [] clarified that . . . ‘[w]hen 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.’”19 We will not reverse a district court’s ruling to admit lay testimony unless

“no reasonable person would adopt [its] view.”20

Agent Kuc’s testimony was based on his personal knowledge of the investigation

against Walker and experience in controlled deliveries. The testimony was helpful to the

jury in understanding the circumstances surrounding the attempted controlled delivery,

including reasons for delay in moving from one location to another. Further, Agent Kuc

did not ultimately provide an opinion as to why Walker changed the meeting location;

instead, he allowed the jury to draw its own conclusions. And the testimony did not involve

any specialized or technical knowledge, rather Agent Kuc made commonsense

18 Fed. R. Evid. 701. 19 United States v. Fulton,

(3d Cir. 2016) (quoting Donlin v. Philips Lighting N. Am. Corp.,

(3d Cir. 2009)). 20 See United States v. Starnes,

(3d Cir. 2009) (quoting Ansell v. Green Acres Contracting Corp.,

(3d Cir. 2003)). 8 observations based on his personal experience. Thus, the testimony was properly admitted

as lay testimony.21

In any event, even if we were to find that Agent Kuc testified as an expert, the

error certainly does not meet the standard for plain error. The point at which lay

testimony becomes expert testimony is hazy and there is no clear guidance on when a law

enforcement officer’s testimony based on his personal experience becomes expert

testimony. Thus, any error “would not have been ‘clear or obvious, rather than subject to

reasonable dispute.’”22

Further, under the circumstances of this case, Agent Kuc’s testimony was

certainly relevant. “Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of consequence in

determining the action.”23 At issue in this case is whether Walker knowingly attempted

to possess the packages containing marijuana. Agent Kuc testified that suspects

sometimes move a meeting location to avoid law enforcement and maintain control over

the drug meet. From this testimony, and testimony that Walker did in fact change

meeting locations several times, the jury could infer that Walker moved the meeting

21 See United States v. Valdivia,

, 50–51 (1st Cir. 2012) (holding that the agent’s testimony “that traffickers often list unrelated third parties as their telephones’ subscribers, and that, in this case, the phone account at issue was organized under a similar scheme” was proper lay testimony under Rule 701 because it was based on the officer’s personal experience in prior drug investigations and did not require technical or scientific expertise). 22 Fulton,

(quoting United States v. Marcus,

(2010)). 23 Fed. R. Evid. 401. 9 location in an attempt to evade law enforcement and take possession of the illegal drugs.

The testimony was thus relevant.

Walker also asserts that the challenged testimony was unfairly prejudicial because

it led the jury to believe that Walker moved the meeting location to avoid detection. We

again disagree.

While “Rule 403 allows relevant evidence to be excluded when its probative

value is substantially outweighed by the potential for unfair prejudice,”24 we cannot find

that the District Court abused its discretion in admitting the challenged testimony.

Walker’s arguments amount to a mere complaint that the challenged testimony might

have caused the jury to believe he was guilty of attempting to possess illegal drugs. But

that is not unfair prejudice. We have explained that “[v]irtually all evidence is

prejudicial.”25 “[T]he prejudice against which the law guards is unfair prejudice—

prejudice of the sort which clouds impartial scrutiny . . . . [T]he fact that probative

evidence helps one side prove its case obviously is not grounds for excluding it under

Rule 403.”26 Walker fails to show that the challenged evidence was unfairly prejudicial,

and nothing in the record suggests that the District Court erred in admitting the

testimony.

24 United States v. Lacerda,

(3d Cir. 2020). 25 Carter v. Hewitt,

, 972 n.14 (3d Cir. 1980) (quoting Dollar v. Long Mfg., N.C., Inc.,

(5th Cir. 1977)). 26 Goodman v. Pa. Tpk. Comm’n,

, 670 (3d Cir. 2002) (quoting Wagenmann v. Adams,

(1st Cir. 1987) (emphasis in original)); see also Starnes,

(discussing same). 10 C. Authenticity of Personnel File and Tracking Records

Finally, Walker argues that the District Court erred in admitting the mail

carrier’s United States Postal Service personnel file and a package delivery printout

because the Government failed to sufficiently authenticate the documents. We disagree.

Under Rule 901(a) of the Federal Rules of Evidence, “[t]o satisfy the

requirement of authenticating or identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the item is what the proponent

claims it is.”27 “We have repeatedly noted that ‘[t]he burden of proof for authentication

is slight.’”28

The Government introduced the documents Walker challenges through the

testimony of Postmaster Carrozza. At the time of trial, Postmaster Carrozza had worked

for the United States Postal Service for twenty-five years. He testified as to his

familiarity with the creation and maintenance of employment files and package tracking

records. Based on his numerous years of experience, including the retrieval and review

of personnel files for his own employees, Postmaster Carrozza’s testimony was sufficient

to support the Government’s claim that the records constituted the mail carrier’s

personnel file and a package delivery printout.29

27 Fed. R. Evid. 901(a). 28 Lexington Ins. Co. v. Western Penn. Hosp.,

(3d Cir. 2005) (quoting McQueeney v. Wilmington Trust Co.,

(3d Cir. 1985)). 29 See Link v. Mercedes-Benz of N. Am., Inc.,

, 927 (3d Cir. 1986) (finding that documents were properly authenticated under Rule 901 where there was testimony demonstrating “knowledge that the materials were what appellees claimed them to be”); see also United States v. Estrada-Eliverio,

(9th Cir. 2009) (holding that agent’s testimony was sufficient to authenticate documents from defendant’s 11 Accordingly, the District Court did not abuse its discretion in admitting both

exhibits.

III. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.

immigration file and recognizing that “FRE 901 does not require personal knowledge of a document’s creation, but rather only personal knowledge that a document was part of an official file”). 12