UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4165

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ODERE RAZAK SULEITOPA,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:16-cr-00168-JFM-1)

Submitted: February 27, 2018 Decided: March 7, 2018

Before GREGORY, Chief Judge, and KEENAN and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Meghan Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Stephen M. Schenning, Acting United States Attorney, Judson T. Mihok, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Odere Razak Suleitopa was convicted after a jury trial of wire fraud and aiding

and abetting, in violation of

, 1343 (2012), and aggravated identity theft

and aiding and abetting, in violation of

, 1028A(a)(1) (2012). The district

court sentenced Suleitopa to 63 months’ imprisonment. Suleitopa appeals, raising three

challenges to his convictions. We affirm.

Suleitopa contends first that the district court erred under Fed. R. Evid. 701 in

admitting opinion testimony given by special agent Van Wie—the Government’s case

agent—about clothing worn by and the identity of the suspect depicted in surveillance

video of fraudulent credit card purchase transactions because that testimony was not

based on personal knowledge or helpful to the jury. Under Rule 701, lay opinion

testimony is admissible if (1) it is “rationally based on the witness’s perception,” (2) is

“helpful to clearly understanding the witness’s testimony or to determining a fact in

issue,” and (3) it is “not based on scientific, technical, or other specialized knowledge

within the scope of [Fed. R. Evid.] 702.” Admission of evidence under Rule 701 is

reviewed for abuse of discretion. United States v. Min,

(4th Cir.

2013). A district court abuses its discretion “if its [admission] decision is guided by

erroneous legal principles or rests upon a clearly erroneous factual finding.” United

States v. Johnson,

(4th Cir. 2010) (internal quotation marks omitted).

Lay opinion testimony under Rule 701 must be based “on personal knowledge.”

(internal quotation marks omitted). “[A]dequately build[ing] a foundation for lay

testimony” requires that the testimony “be based on the perception of the witness.”

at

2 292-93 (internal quotation marks omitted). Indeed, “[a] critical distinction between Rule

701 and Rule 702 testimony is that an expert witness must possess some specialized

knowledge or skill or education that is not in possession of the jurors.”

(internal quotation marks omitted). “Therefore at bottom[,] Rule 701 forbids the

admission of expert testimony dressed in lay witness clothing.”

(internal quotation

marks, alteration, and ellipsis omitted). A lay witness may give an opinion concerning

the identity of a person depicted in surveillance imagery if there is some basis for

concluding that the witness is more likely to correctly identify the defendant from the

imagery than is the jury. United States v. Robinson,

(4th Cir. 1986).

After review of the record and the parties’ briefs, we conclude that the first two

requirements of Rule 701 were satisfied. Agent Van Wie was the lead investigator for

the Government in this case. He recovered and catalogued all of the evidence adduced at

trial, including the surveillance video, and matched credit card purchase receipts to time

stamps in the video. He spent, as a “low estimate,” eight to ten hours reviewing video

surveillance. His testimony regarding similarities in clothing on the suspect depicted in

the surveillance video and still images taken from that video was rationally based on his

own personal perception about events depicted in them in light of his review of them and

his recovery and cataloguing of all the evidence in the case. Further, Suleitopa has not

disputed the Government’s assertion that agent Van Wie was personally aware of what he

looked like after having been present at his pre-trial initial appearance, arraignment, and

motions hearings. Given this and the fact that the suspect depicted in the surveillance

video wore brimmed hats that obscured his face from surveillance cameras, Van Wie

3 qualified as a person more likely to correctly identify Suleitopa as the person in the

surveillance images, and his testimony was “helpful to the jury on the issue of fact of

whether the appellant was the person shown in the [store] surveillance.” Robinson,

. The district court, therefore, did not abuse its discretion in admitting the

testimony.

Next, Suleitopa contends that the district court erred in denying his motion for a

mistrial. We review a district court’s denial of a motion for a mistrial for abuse of

discretion. United States v. Johnson,

(4th Cir. 2009). For a court’s

denial of mistrial motion to amount to an abuse of its discretion, the defendant must show

prejudice; prejudice does not exist, however, “if the jury could make individual guilt

determinations by following the [district] court’s cautionary instructions.”

United States v. Wallace,

(4th Cir. 2008) (internal quotation marks

omitted). Suleitopa argues that agent Van Wie’s testimony prejudiced him because the

district court never instructed the jury that the testimony was improper and was to be

disregarded. In the absence of any curative instruction doing so, Suleitopa contends, a

mistrial was appropriate and the district court abused its discretion in denying his request

for one.

We conclude that Suleitopa’s challenge to the district court’s denial of his motion

for a mistrial fails because the underlying premise on which it rests—that Van Wie’s

testimony was improperly admitted—fails as without merit. Further, given the abundant

evidence in the record linking Suleitopa to the fraudulent purchase transactions and the

district court’s explicit instructions to the jury that the Government had to prove his

4 identity as the perpetrator of the crimes and that any reasonable doubt it had about

whether Suleitopa was the perpetrator required it to return a not guilty verdict—

instructions the jury is presumed to have followed, e.g., United States v. Chong Lam,

(4th Cir. 2012)—Suleitopa was not prejudiced by the district court’s denial

of his mistrial motion.

Finally, Suleitopa argues that the Government’s rebuttal closing argument was

improper. This is so, in Suleitopa’s view, because counsel for the Government

improperly informed the jury that he had been stripped of his presumption of innocence.

As Suleitopa acknowledges, he did not raise a contemporaneous objection to this portion

of the Government’s rebuttal argument. We therefore review this claim for plain error.

United States v. Baptiste,

(4th Cir. 2010). On plain error review,

Suleitopa bears the burden of establishing the presence of an error that was plain and that

affected his substantial rights.

. With regard to the third element of this

standard, Suleitopa must show that the error “actually affected the outcome of the district

court proceedings.”

(internal quotation marks omitted). “However, even if the error

is plain and affects substantial rights, we do not exercise our discretion to correct the

error unless a miscarriage of justice would result or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings independent of the

defendant’s innocence.”

(internal quotation marks, alterations, and ellipsis omitted).

With respect to claims of prosecutorial misconduct in connection with closing

argument, the appellant “must show that the remarks were improper and that they

prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a

5 fair trial.”

(internal quotation marks omitted). In determining whether

improper remarks require reversal, we consider:

(1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters [;] (5) whether the prosecutor’s remarks were invited by improper conduct of defense counsel [;] and (6) whether curative instructions were given to the jury.

(internal ellipses omitted). “The ultimate question is whether the prosecutor[’s]

comments so infected the trial with unfairness as to make the resulting conviction a

denial of due process.”

(internal quotation marks omitted). Suleitopa takes

issue with the prosecuting attorney’s statement in rebuttal argument that, when the jury

formulated its verdict and began deliberating in the case, it would “realize that the

defendant has been stripped of the presumption of innocence.” *

* During closing argument, defense counsel asserted that the Government had not met its burden to prove Suleitopa’s identity as the perpetrator of the charged offenses beyond a reasonable doubt. In rebuttal, counsel for the Government stated in part as follows:

[W]ith regard to that burden beyond a reasonable doubt, we don’t shrink from that burden. We love that burden. It’s one of the cornerstones of our system. And the presumption of innocence, we don’t shrink from that, that’s true. But when you go back to deliberate and consider this evidence and weigh it against the instructions the [c]ourt just gave you, you end up coming to a conclusion or verdict, really everything we’ve done in this courtroom since Monday is about that, very simple verdict, facts as you determine them to be, plus the law, which the Judge just gave, you put them together, you get your verdict. (Continued) 6 The presumption of innocence afforded to a criminal defendant who proceeds to

trial “is a basic component of a fair trial.” Estelle v. Williams,

(1976).

The presumption remains with the defendant “until the very moment when the jury

agrees to a guilty verdict.” United States v. Dilg,

(11th Cir. 1983);

see United States v. LaFontaine,

(8th Cir. 2017); Dodson v. United

States,

(4th Cir. 1928). The assertion by Government counsel in the

rebuttal argument that the jury would realize that Suleitopa had been “stripped” of the

presumption of innocence when it began deliberations was, we conclude, plainly

improper, as this statement misstated the law.

Nevertheless, we also conclude that Suleitopa has not shown that the remark

prejudicially affected his substantial rights so as to deprive him of a fair trial. The district

court instructed the jury that the presumption of innocence attended a defendant

“throughout” the trial and that it was the Government’s burden to establish the

defendant’s guilt beyond a reasonable doubt, a determination the court instructed was the

sole province of the jury based on its consideration of the evidence adduced at trial, not

the statements and arguments of counsel. Given that the jury is presumed to have

followed the district court’s instructions, we conclude it unlikely the jury was misled into

When you do that in the deliberations process when you begin deliberating in this case, you’ll realize that the defendant has been stripped of the presumption of innocence and his guilt has been laid bare.

J.A. 653.

7 thinking that Suleitopa’s presumption of innocence was extinguished prior to its verdict.

Additionally, Suleitopa concedes that the remark was isolated and has not suggested that

the record lacks competent proof to establish his guilt or made any argument regarding

diversion of the attention of the jury to extraneous matters. Further, although the defense

did not invite the remark and the district court did not give a curative instruction, we find

these factors of minimal relevance. Weighing all of these factors, we conclude that the

remark did not affect Suleitopa’s substantial rights. There is, we therefore conclude, no

plain error requiring reversal.

Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED

8