United States v. Jared Baraloto

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4515

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JARED BARALOTO,

Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Senior District
Judge. (1:10-cr-00134-BEL-3)

Argued: March 22, 2013 Decided: July 25, 2013

Before KING, GREGORY, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a dissenting opinion.

ARGUED: Steven Hale Levin, LEVIN & CURLETT LLC, Baltimore,
Maryland; Michael Anthony Pusateri, Washington, D.C., for
Appellant. Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jared Baraloto was convicted by a jury in the District of

Maryland on the charges alleged in a superseding indictment

stemming from his involvement in a widespread conspiracy to

purchase and resell stolen goods. The indictment charged

Baraloto with four offenses: (1) conspiring to transport stolen

goods in interstate commerce, in violation of 18 U.S.C. § 371;

(2) transporting stolen goods in interstate commerce, in

contravention of 18 U.S.C. § 2314; (3) conspiring to commit

money laundering, in violation of 18 U.S.C. § 1956(h); and (4)

conspiring to commit wire fraud, in contravention of 18 U.S.C.

§ 1349. Baraloto appeals his convictions, maintaining that the

court erred in allowing prosecution witnesses to speculate on

whether goods were stolen, and asserting that the trial evidence

was otherwise insufficient to support the verdict. As explained

below, we affirm.

I.

The charges against Baraloto and his co-conspirators arose

from a lengthy investigation into a large-scale organized retail

theft scheme, in which shoplifters sold brand-new stolen items —

mainly over-the-counter medications (“OTCs”) and health-and-

beauty aids (“HBAs”) — to so-called “buy/sell” shops, including

one called Fast Money, owned and operated by brothers Jerald

2
Bradford and Scott Bradford. 1 In the conspiracy and theft

scheme, Baraloto was a stolen property wholesaler, commonly

known as a “fence,” who purchased stolen goods primarily from

the Bradfords and sold them to Jerome Stal. In turn, Stal

resold the stolen goods at flea markets, pawn shops, and retail

websites, as well as to other wholesalers.

On March 25, 2010, investigators executed search warrants

and arrested nearly all of the seventeen alleged conspirators,

including Baraloto. Agents recovered over $1,000,000 in stolen

merchandise, approximately $1,000,000 from bank accounts, and

more than $140,000 in cash from the targeted buy/sell shops and

pawn shops.

A.

On November 21, 2011, Baraloto alone proceeded to trial,

during which the government presented the testimony of law

enforcement officers and cooperating witnesses. 2 The cooperating

witnesses — most of them already convicted — confirmed the

nature of the conspirators’ business model, which consisted of

1
As the government explains in its brief, a buy/sell shop
allows customers to sell items outright, as opposed to a pawn
shop, which permits its clientele to borrow money against items
left with the shop as collateral.
2
The trial lasted a total of nine days, ending on December
9, 2011. There were twelve prosecution witnesses. Baraloto did
not testify.

3
purchasing new items in cash at steep discounts from

shoplifters. One witness, Amber Boothe, testified that she,

along with other shoplifters, had serious drug problems and used

cash from the sale of stolen items to service their addictions.

Boothe identified Baraloto as someone she saw at Fast Money when

she was selling stolen goods.

The trial evidence further revealed that, in the final

weeks before agents executed search warrants and ended the theft

scheme on March 25, 2010, Baraloto and Stal partnered in a

venture to purchase and operate a pawn shop called Blue Diamond.

The pair intended that a major part of Blue Diamond’s business

would come from OTCs and HBAs, and they attempted to recruit

shoplifters away from other buy/sell shops involved in the

broader theft scheme. In early and mid-March 2010,

investigators monitored Stal’s personal cell phone, pursuant to

a court-authorized wiretap. Those recorded calls revealed the

details of the retail theft scheme, capturing numerous

incriminating conversations among the various co-conspirators,

including between Stal and Baraloto.

1.

At trial, the defense insisted that Baraloto was unaware

that the trafficked goods might have been stolen, such knowledge

being an essential element of the charged offenses. Baraloto’s

counsel explained during his opening statement that the “heavily

4
regulated” buy/sell industry had various safeguards in place to

ensure its legitimacy. These safeguards included the

requirement that shop owners “sheet,” or document, each

transaction and provide the record to the local police

department’s pawn unit. Each shop was also constrained to honor

a “holding period” for every item it received, designed to

“protect the victim of a crime [by] giving that person about 10

days to report the theft.” J.A. 766-68. 3 According to his

lawyer, Baraloto “believed that the pawn shops from which he

purchased health and beauty aids were complying with the

sheeting [requirements],” and, accordingly, he lacked the

necessary knowledge to be convicted. Id. at 769-70. The

defense emphasized that Baraloto operated transparently, was

paid by check, and maintained detailed records of his

transactions, all of which suggested he was a “legitimate

businessman.” Id. at 777.

Baraloto’s lawyer explained that there was a thriving

secondary market for damaged or expired OTCs and HBAs, comprised

of “people who want to bargain or simply cannot afford to pay

retail prices.” J.A. 778. He suggested that the items Baraloto

purchased from Fast Money were provided not by shoplifters, but

3
Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.

5
instead by “dumpster div[ers].” Id. at 780. Those enterprising

opportunists would retrieve new, in-the-box items from the

dumpsters behind retail outlets and then sell the nearly expired

or expired items for a profit to buy/sell shops. The shops

would then resell such items to liquidators, flea markets, and

individual buyers.

2.

Jerald Bradford, having pleaded guilty to criminal tax

offenses, agreed to cooperate with the government. Bradford

testified that, as part of his plea deal, he admitted that the

items he purchased at Fast Money were stolen. Baraloto objected

to this evidence, asserting that it was irrelevant, speculative,

and made without firsthand knowledge. The district court

overruled Baraloto’s objection, however, reasoning that Bradford

was merely offering his lay opinion based upon “common sense”

and his “familiarity with the industry.” J.A. 873.

Jerald Bradford explained that Fast Money was located in a

depressed area of south Baltimore known as Brooklyn, which he

characterized as “[v]ery rough, a lot of drugs, homicides.”

J.A. 878. Bradford testified that about 90% of his clientele

was comprised of drug addicts, referring to the “IV, needle

marks on their arms, skin pops, stuff like that, and from them

telling me.” Id. at 879. Bradford described the body odor

attendant to many of his customers, who told him that they

6
“wouldn’t take a bath to keep their pores close[d] so they would

stay high.” Id. The customers “all talked about how to score

heroin. This is not something they keep hushed.” Id. at 937.

These were the people, Bradford said, who brought in “all new

items, from health and beauty aid[s], you know, razors,

Prilosec, general stuff, Tylenol, Advil, Aleve,” that accounted

for roughly 60% of Fast Money’s $3.3 million in sales between

2005 and 2009. Id. at 879-80.

Jerald Bradford indicated that his “[c]ommon sense” told

him the items were stolen: “[I]f someone came in with 20 boxes

of Tylenol a hundred counts, 10 boxes of Prilosec, 42 counts

[of] Fusion razor blades, going [to] sell them to me for less

than a third of what they actually cost in the store,” this was

a clear indication the items were stolen. J.A. 885. Bradford

stated that he only purchased items that Baraloto approved.

Bradford explained that he met Baraloto in 2007, and the two

began their business relationship after Baraloto offered to pay

a higher percentage on Bradford’s HBAs than Fast Money’s

existing wholesaler. Baraloto eventually visited Fast Money

every day, where he witnessed customers walking in the door

carrying bags of items, often interacting with them. According

to Bradford, Baraloto would not purchase items that were damaged

or expired. Bradford sold these items at flea markets.

7
 Jerald Bradford’s brother, Scott, explained how a typical

HBA transaction at Fast Money worked: “[The customer] would

come in and place the items that they were going to sell on the

counter.” J.A. 977. The customer typically sorted the items

himself, while an employee filled out the transaction sheet,

pursuant to the sheeting requirements. Scott Bradford testified

that Fast Money paid their customers about one-third of the

items’ retail value.

As it had his brother, the government also asked Scott

Bradford whether the HBAs he purchased were stolen. Baraloto

objected on the ground that Bradford lacked the personal

knowledge necessary to answer. The district court overruled the

objection, observing that the government bore the burden of

proving that the relevant items were stolen, and that

circumstantial evidence — including that “the individuals who

were doing the selling . . . [were] heroin addicts [and] that

the products were in their original packaging” — was an

appropriate means of meeting this burden. J.A. 991. The court

added that the Bradford brothers could “testify as to their

conclusion, their lay opinion that many of the goods were

stolen” for a number of reasons, not least because “it explains

the actions that they took.” Id. at 992.

Scott Bradford thus explained that he knew the items he

purchased were stolen because he “heard customers talk about the

8
stuff they brought in,” including asking one another where they

“shop,” or whether particular individuals were “on vacation”

(i.e., in jail). J.A. 993-94. Bradford noticed track marks and

other indicia of drug addiction on Fast Money’s customers, and

he confirmed that Baraloto often “hung out” at Fast Money,

interacted with the customers, and would have overheard the same

conversations. Id. at 996, 999.

Baraloto objected again during the testimony of his former

stepdaughter, Ashley Williams, who for a time had worked at Fast

Money. Williams identified Baraloto as Fast Money’s

“wholesaler” who often “h[u]ng out” at the shop, and agreed that

Fast Money’s customer base was comprised overwhelmingly of drug

addicts who brought in stolen goods. J.A. 1065-66. The

district court again overruled Baraloto’s evidence objection,

providing a careful summary of its reasoning:

My thinking on this subject is essentially this:
Count 2 of the [Second Superseding] Indictment charges
. . . Mr. Baraloto . . . with interstate
transportation of stolen goods. In order to sustain
this charge, the government must prove beyond a
reasonable doubt four elements . . . . The two
elements that are most pertinent to this line of
inquiry are, A, that the goods were stolen, and, B,
the defendant’s knowledge that the goods were stolen.

The government is entitled to introduce evidence
of any tendency to prove that the goods were stolen
and this is so under Federal Rule[s] of Evidence 401
and 402, provided that the requirements of 601 and 602
are satisfied, and those are the personal knowledge
requirements.

9
 The Bradford brothers, Miss Boothe, and to a
certain extent, Miss Williams testified as to
circumstantial evidence that the goods were stolen.
Goods brought in by addicts, original packaging,
retail store stickers, the large quantity of health
and beauty aids and merchandise brought in by addicts
and the fact that the store Fast Money purchased these
items at less than retail price, the circumstantial
evidence is all perfectly appropriate under 404(2) and
602.

The sticky question is whether the Bradford
brothers and Miss Williams can testify as to an
opinion that the goods were stolen . . . . Rule 701
states that if the witness is [not] an expert, the
witness’s testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are, A, rationally based on the perception of
the witness, and here the opinion of the witness is
rationally based upon the circumstantial evidence
. . . . It would be helpful . . . to the
determination of [a] fact in issue, two facts in
issue, were the goods stolen and did Mr. Baraloto know
about it?

And, C, not based on scientific, technical, or
other specialized knowledge and the scope of the 702,
seems to me that while working in that kind of
establishment is sort of specialized employment, that
neither the Bradfords nor [Miss Williams’s] testimony
would be expert testimony that falls within the scope
of 702.

So my view is that the inferences of the Bradford
brothers and Miss Williams is properly admitted under
Rule 701, so that their testimony to that effect is
proper.

Id. at 1056-58. Williams then testified that she believed the

goods that Fast Money purchased were stolen, not only because

“[r]ealistically, nobody has a hundred bottles of 500-count

Tylenol at their house,” but also because some of the items

10
“came in with tags from certain retail stores on them, and we

took the tags off.” Id. at 1060-61.

Michael Ender and Daniel Mimer, who had each worked with

Baraloto, testified about the nature of Baraloto’s business

transactions. Those witnesses related that the customers who

sold OTCs and HBAs to the buy/sell shops typically were addicts

who needed money for drugs, and who often came in with new, in-

the-box items “three, four times a day to cash in.” J.A. 1088.

Warren Allen Culver, an associate of Stal, testified that

Stal’s direct suppliers included Baraloto. Culver described his

involvement with the Blue Diamond pawn shop, the venture between

Jerome Stal and Baraloto. Culver worked at the shop, primarily

because he “knew the medicine side of the business.” J.A. 1175.

Upon Baraloto’s instructions, Culver “sheeted” every transaction

that took place at Blue Diamond. Culver stated that, in his

mind, he was sheeting the purchase of stolen property.

Finally, the prosecutors called Stal as a witness. Stal

discussed his previous convictions for transporting stolen

property and related offenses, acknowledging that he served

twenty months at the federal prison in Otisville, New York.

Stal then described the types of HBAs he was willing to purchase

from the buy/sell shops, stating that if the items had reached

their sell-by date, he had trouble reselling them to his

contacts. Stal confirmed that Baraloto became one of his

11
suppliers around 2007, and that, over time, Baraloto brought in

HBAs from three buy/sell shops. Stal kept track of his business

dealings, including those involving Baraloto, by entering them

into his accounting system. His records from 2006 to 2010

revealed sales in excess of $28.7 million, and purchases (from

fences like Baraloto) exceeding $24.4 million. Baraloto was

Stal’s fifth-largest supplier during that period, responsible

for $1.8 million in sales. Describing the buy/sell business,

Stal explained that, in his experience, resalable HBAs could be

procured in several ways. For example, when new products were

introduced, retailers might provide the unsold old products at a

discount. Or, one could use coupons to purchase the items at

below the retail price. Also, one could secure items from

reclamation centers. Stal testified, however, that he had not

trafficked in such items, because most of his contacts would not

accept goods that were expired or damaged, had been

discontinued, or had old UPC codes.

3.

The prosecution also presented evidence of a series of

wiretapped conversations between Stal and Baraloto. Certain

recorded calls confirmed Baraloto’s knowledge of Stal’s

extensive network of customers, and the pair also discussed the

status of the HBA business at Blue Diamond, together with the

volume of HBA business coming out of Fast Money. The

12
prosecutors ended their direct examination of Stal by playing a

wiretapped conversation between him and Baraloto on March 29,

2010, four days after the partners had been arrested:

STAL: Alright. So what are you going to do?

* * *

BARALOTO: . . . I just can’t see my life ah any other
way you know, and I, I can’t, I can’t go to prison and
even if I could go to prison, I couldn’t live outside
of prison with the restrictions of a felony
conviction, you know I can’t do it.

STAL: Ah it ain’t that bad.

* * *

Oh, what Scott [Bradford] say, he knows nothing?

BARALOTO: Yeah, Scott . . . , optimistic that ah, that
he’ll get off it so I guess he didn’t do anything.
I’m just not, not that optimistic I don’t, I don’t
know if I said something to somebody somewhere you
know off the cuff. I don’t remember every
conversation I ever had with everybody.

STAL: Right.

BARALOTO: You know they twist my words to make it
sound like I said any fucking thing.

STAL: I’ll fess that they’re good at that. Just wait
and see man don’t ahh don’t get all excited yet.

BARALOTO: I know, you know I’m just, you know
contemplating the possibilities you know what, the way
you know I’ll, I’ll wait to see what the affidavit
says and if it says something ridiculous then you know
then I, I’ll feel like I can beat it or have a chance
that’s one thing, you know but if it’s something I
can’t beat . . . .

* * *

13
 STAL: I last spoke to my lawyer he said, he said we’re
not going to see anything for at least two to three
months.

* * *

BARALOTO: What about the right to a speedy trial?
Jesus Christ, haha.

STAL: You can’t go to trial man they’ll kill ya.
They’ll kill ya man. I’m telling ya.

BARALOTO: Yeah.

Id. at 113-16.

4.

During the defense’s cross-examination of Stal, Baraloto

presented the transcript of a telephone call that the government

had not introduced into evidence. That March 27, 2010

conversation, which contained Baraloto’s statements to Stal and

Stal’s responses, was proffered to show that Baraloto did not

know that the goods he dealt in were stolen. The transcript of

this call reflects that Baraloto told Stal,

they’re trying to say like . . . we knew, any of this
shit was stolen. Well that’s not true; I mean how
could we be sure. You know people make, people that I
bought stuff from told me that in fact it wasn’t —
they’d show me their sheets or the stickers on the
shit that corresponded with the police report.

* * *

Well, I never witnessed anybody ever steal anything.
I never, nobody ever told me that anything was stolen
how could I have ever know something was unless I saw
it or someone told me? You know, it’s just bullshit.

J.A. 1495.

14
 The district court allowed Baraloto to introduce this call,

not as substantive evidence of his alleged absence of knowledge,

but as “arguably a prior inconsistent statement [of Stal’s]

under [Rule] 613.” J.A. 1500; see id. at 1517 (court’s

instruction to jury). The relevant portion was played to the

jury, and Stal acknowledged that he understood Baraloto to be

asserting his alleged belief that the items they dealt in had

not been stolen.

B.

At the close of the government’s case-in-chief, Baraloto

moved for judgments of acquittal, pursuant to Rule 29 of the

Federal Rules of Criminal Procedure, arguing that “the

Government has relied on certain ‘suspicious’ circumstances to

prove” that Baraloto knew that the merchandise he dealt with was

stolen, and that such evidence was legally insufficient to show

actual knowledge. J.A. 1579. The district court denied the

motion, explaining that “[a] number of witnesses testified that

the shops attracted addicts seeking immediate cash with which to

purchase drugs. Mr. Baraloto, who spent considerable time in

the shops, especially Fast Money, was in a position to observe

this fact.” Id. at 1672.

During the charge conference, the district court reviewed

and considered the government’s request for a willful blindness

instruction, to which Baraloto objected. The court declined to

15
give the instruction, expressing its view that the evidence

tended to prove actual knowledge, rather than a deliberate

closing of eyes. See J.A. 1685. The charge specified that the

prosecution must prove each element of each offense beyond a

reasonable doubt. In explaining the concepts of knowledge and

intent, the court recited that Baraloto “may be found guilty

only if he acted willfully, intentionally, and with knowledge.”

Id. at 1730. The court also instructed that “[t]he defendant’s

conduct is not willful if it was due to negligence,

inadvertence, or mistake.” Id. at 1732.

On December 9, 2011, the jury convicted Baraloto on all

four offenses. On March 29, 2012, Baraloto renewed his motion

for judgments of acquittal, advancing essentially the same

arguments he had raised pre-verdict. The court again denied the

motion, and, on June 29, 2012, sentenced Baraloto to fifty-six

months in prison. Baraloto timely noticed this appeal. We

possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review challenges to a district court’s evidentiary

rulings only to ensure that the court did not abuse its

discretion. See United States v. Perkins, 470 F.3d 150, 155

(4th Cir. 2006). “A court has abused its discretion if its

decision is guided by erroneous legal principles or rests upon a

16
clearly erroneous factual finding.” Brown v. Nucor Corp., 576

F.3d 149, 161 (4th Cir. 2009) (citation and internal quotation

marks omitted). Evidentiary rulings are also subject to

harmless error review, such that we will not reverse if we can

say “with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error.” United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (citation

omitted).

A defendant challenging the sufficiency of the evidence

used to convict him faces a heavy burden. See United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). A jury’s verdict

commands the respect of an appellate court, and must be

sustained if there is substantial evidence to support it. See

United States v. Wilson, 198 F.3d 467, 469 (4th Cir. 1999).

Substantial evidence has been defined, in the criminal context,

as “evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.” United States v. Smith, 451

F.3d 209, 216 (4th Cir. 2006) (internal quotation marks

omitted). Furthermore, “[t]he jury, not the reviewing court,

weighs the credibility of the evidence and resolves any

conflicts in the evidence presented.” Beidler, 110 F.3d at 1067

(internal quotation marks omitted). Finally, “[r]eversal for

17
insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.” Id. (internal quotation marks

omitted).

III.

In this appeal, Baraloto contends that the district court

committed prejudicial error by permitting several lay witnesses

to express their opinions that the goods being trafficked by

Baraloto and Fast Money had been stolen. Baraloto insists,

moreover, that the evidence against him at trial was

insufficient to establish an essential element of each offense,

namely, that Baraloto knew he was dealing in, and conspiring to

deal in, stolen goods.

A.

Baraloto maintains that the lay witnesses’ testimony that

Fast Money dealt in stolen goods was not based on personal

knowledge. He suggests that this evidence was improperly

admitted because the witnesses — Jerald Bradford, Ashley

Williams, Warren Culver, Daniel Mimer, Michael Ender, and Jerome

Stal — were not offered as experts, yet were permitted to

testify on the basis of assumptions predicated on appearance,

quantity, and price of goods, and on the characteristics of the

sellers.

18
 As spelled out below, we reject the contention that the

prosecution’s witnesses improperly gave their opinions about

whether items eventually sold to Baraloto were stolen. Federal

Rule of Evidence 701 provides for the admission of lay opinion

testimony that 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 [for

which an expert would be required].” As we have explained, the

line between lay opinion testimony and expert testimony “is a

fine one,” because “Rule 701 does not distinguish between expert

and lay witnesses, but rather between expert and lay testimony.”

United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006)

(internal quotation marks omitted). In Perkins, we recognized

that

[a]s an example of the kinds of distinctions that Rule
701 makes, the [Advisory] Committee instructs that the
rule would permit a lay witness with personal
experience to testify that a substance appeared to be
blood, but that it would not allow a lay witness to
testify that bruising around the eyes is indicative of
skull trauma.

Id. Unlike the prerequisites for an expert witness under Rule

702, a lay witness is not required to “‘possess some specialized

knowledge or skill or education that is not in possession of the

jurors.’” Id. (quoting Certain Underwriters at Lloyd’s, London

v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000)). Rather, “a

19
lay opinion must be the product of reasoning processes familiar

to the average person in everyday life.” United States v. Yanez

Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (internal quotation

marks omitted).

Recently, in United States v. Mendiola, one of our sister

circuits reiterated that the perceptions of a lay witness must

be based on knowledge, and not on speculation. See 707 F.3d

735, 741 (7th Cir. 2013). Such knowledge need not be “absolute

or unlimited[, however,] but simply that awareness of objects or

events that begins with sensory perception of them, a

comprehension of them, and an ability to testify at trial about

them.” Id. In Baraloto’s case, the prosecution’s lay witnesses

readily satisfied the applicable standard. They had witnessed

numerous transactions pertaining to Baraloto’s buy/sell retail

business, and through these encounters were amply aware of the

nature and conventions of that stolen goods enterprise. When

persons known to be drug addicts repeatedly entered Fast Money

with thousands of dollars worth of OTCs and HBAs, and proceeded

to sell such items for pennies on the dollar, any reasonable

observer could conclude, as a matter of common sense, that the

goods were stolen. Thus, the lay witnesses’ testimony

20
concerning the stolen nature of the goods was properly admitted

and the trial court did not abuse its discretion. 4

B.

We also reject Baraloto’s challenge to the sufficiency of

the evidence. The government presented abundant evidence,

direct and circumstantial, upon which the convictions can be

sustained. The witnesses explained the nature of Baraloto’s

business — a multi-million dollar stolen goods enterprise that

preyed upon drug addicts who were desperate for quick cash. The

enterprise perpetuated the theft and disposition of stolen

goods, and it interrupted commerce. The government also

presented telephone conversations between Baraloto and his

partner, Stal, where Baraloto was not surprised that he had been

charged with the interstate transportation of stolen goods,

telling Stal that he was “not optimistic” and that he would not

make any decisions until he received discovery in his criminal

case.

4
Aside from the opinion testimony that the goods were
stolen, Amber Boothe, a former drug addict and shoplifter,
testified that she routinely stole HBAs from retail stores and
sold them immediately to Fast Money. Boothe also confirmed
that, from her time at Fast Money, she recognized Baraloto as a
visitor to the store. Boothe’s testimony alone created a
triable question of fact concerning whether Baraloto knew the
goods were stolen.

21
 The witnesses consistently confirmed that they knew, based

primarily on common sense, that the goods Baraloto was

purchasing and selling were stolen. There was ample evidence

for the jury to find that Baraloto, who dealt regularly with the

witnesses — and who perceived the same circumstances and

conducted the same transactions as had each of them — must have

come to the same conclusion. See United States v. Beidler, 110

F.3d 1064, 1068 (4th Cir. 1997) (recognizing that “‘knowledge of

illegality may be proven by circumstantial evidence’” and “‘by

drawing reasonable inferences from the evidence of defendant’s

conduct’” (quoting Ratzlaf v. United States, 510 U.S. 135, 149

n.19 (1994))).

Baraloto seeks support on his sufficiency contention from

our decision in United States v. Ebert, which reversed the

convictions of multiple defendants who were found guilty of

money laundering and receiving stolen goods — namely OTCs and

HBAs. See No. 96-4871, 1999 WL 261590 (4th Cir. 1999)

(unpublished). Ebert, however, is non-precedential and readily

distinguishable. That prosecution was based on the theory of

willful blindness, and we determined that the court had

improperly instructed the jury in that regard. Instead of

pointing to witnesses who knew the goods were stolen, the

government presented “highly suspicious circumstances” to the

jury, including “plain brown boxes” and low prices, to prove

22
that the defendants were deliberately ignorant of the stolen

goods. See id. at *13, 22. Here, the district court properly

recognized in its December 2, 2011 Memorandum to Counsel that,

in Ebert, “[t]here was . . . no evidence that the defendants had

direct knowledge” of the stolen nature of the goods. J.A. 1670.

The prosecution’s case against Baraloto on the stolen nature of

the goods was much more substantial, and the trial court

declined to instruct on willful blindness, correctly explaining

that the evidence tended to prove actual knowledge, rather than

willful blindness. See id. at 1685. Indeed, there was an

abundance of direct and circumstantial proof that the goods

Baraloto bought and resold had been stolen, and more than enough

evidence for the jury to conclude that Baraloto knew that he was

dealing in, and conspiring to deal in, stolen goods.

IV.

Pursuant to the foregoing, the judgment of the district

court is affirmed.

AFFIRMED

23
GREGORY, Circuit Judge, dissenting:

The majority is absolutely right, “[a] jury’s verdict

commands the respect of an appellate court.” Ante 17. In fact,

jury trials are “fundamental to the American scheme of justice.”

Duncan v. State of La., 391 U.S. 145, 149 (1968). When the

Government, therefore, infuses a case with impermissible

evidence in order to attain a favorable jury verdict, not only

does the Government undermine the province of the jury, it also

destabilizes the entire justice system. In an effort to convict

Mr. Baraloto of knowingly transporting and conspiring to

transport stolen goods, the Government played on prevalent

misperceptions of “urban” America, piling inference upon

inference in order to “prove” both that the goods Baraloto was

dealing were stolen and that Baraloto had actual knowledge of

this fact. The Government unabashedly relied on conjecture to

meet its constitutional burden of proof. I must dissent.

I.

To convict Baraloto of transporting, and conspiring to

transport stolen goods, the Government had to prove beyond a

reasonable doubt that: (1) the goods were stolen; (2) Baraloto

transported the goods or caused them to be transported; (3) at

the time of transportation, Baraloto knew the goods were stolen;

and (4) the value of the stolen property was $5000 or more. The

24
Government went about proving the first and third elements in

large part by eliciting testimony from Fast Money’s owners,

employees, associates, and clientele, all of whom opined in some

regard that Fast Money’s customer base consisted of drug addicts

who were necessarily dealing in stolen goods. Ante 6-12.

Baraloto objected to this testimony, “maintain[ing] that the lay

witnesses’ testimony that Fast Money dealt in stolen goods was

not based on personal knowledge.” Ante 18. At least seven

Government witnesses – Jerald Bradford, Scott Bradford, Ashley

Williams, Warren Culver, Daniel Mimer, Michael Ender, and Jerome

Stal – testified to the effect it was their belief that drug

addicts stole goods to sell at Fast Money (and other

neighborhood pawn shops). Baraloto argued this testimony

violated Federal Rules of Evidence 602 and 701. Baraloto was

right.

II.

Federal Rule of Evidence 602 declares “[a] witness may

testify to a matter only if evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the

matter.” (Emphasis added). The only testimony excepted from

the personal knowledge requirement is expert testimony. The

majority does not contend the disputed testimony falls under the

expert testimony exception. Instead, it concludes that the

25
disputed testimony was admissible as lay witness opinion

testimony under Federal Rule of Evidence 701. Opinion testimony

allowed under Rule 701 is limited to testimony that is: “(a)

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

clearly understand[] the witness’s testimony or to determin[e] 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 hope that the same evidentiary errors are not

repeated going forward, I provide a more comprehensive analysis

of what Rule 701 permits generally, and then hone in on Rule

701’s application to the facts of this case.

A.

We have said in the past that Rule 701 “allows testimony

based on the person’s reasoning and opinions about witnessed

events, such as are familiar in every day life.” United States

v. Offill, 666 F.3d 168, 177 (4th Cir. 2011). Beyond this

amorphous statement, our guidance has been scant. It is

important to note, however, that nothing in Rule 701 exempts lay

opinion testimony from the personal knowledge requirement found

in Rule 602. Quite contrary, “[t]he requirement that lay

opinion be based on the perception of the witness imports into

Rule 701 the personal knowledge standard of Rule 602.” United

States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013) (citing

26
United States v. Bush, 405 F.3d 909, 916, n. 2 (10th Cir.

2005)).

While there may be some ambiguity as to what comprises a

“rationally based opinion,” at a minimum, Rule 701 lay opinion

testimony requires a proper foundation to be laid, demonstrating

the witness has “personal knowledge of the facts from which the

opinion is derived.” U.S. v. Carlock, 806 F.2d 535, 551 (5th

Cir. 1986). The burden is on the party wishing to introduce lay

opinion testimony, i.e., the Government, to establish this

foundation. U.S. v. Grinage, 390 F.3d 746, 749 (2d Cir. 2004).

In laying a proper foundation, “[t]he nature and extent of the

contacts and observations” are important. United States v.

Pickett, 470 F.2d 1255, 1258 (D.C. Cir. 1972) (emphasis added).

Therefore, in order for a court to admit lay opinion testimony,

it “must find that the witness’ testimony is based upon his or

her personal observation and recollection of concrete facts.”

United States v. Jackson, 688 F.2d 1121, 1124 (7th Cir. 1982)

(emphasis added) (citing United States v. Skeet, 665 F.2d 938,

985 (9th Cir. 1982)). If the witness does not provide a proper

basis for his opinion, then the testimony is not admissible

under Rule 701. See United States v. Rea, 958 F.2d 1206, 1216

(2d Cir. 1992).

Once a proper foundation for opinion testimony is laid, the

Government must establish a rational connection between the

27
“opinion and the observed factual basis from which it is

derived.” Carlock, 806 F.2d at 551. This connection, or

“reasonable inference” as some courts call it, must be one “that

a normal person might draw from those observations.” Lubbock

Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 264

(5th Cir. 1980). However, where a lay opinion is formed outside

the realm of “common experience,” United States v. Paiva, 892

F.2d 148, 157 (1st Cir. 1989) -- where the average person could

not form the same opinion based on the observed concrete facts,

more is required to establish an adequate connection. In these

instances, witnesses must explain their specialized experience

with the subject of their lay opinion testimony. See, e.g.,

United States v. Williams, 212 F.3d 1305, 1310 (D.C. Cir. 2000)

(district court erred in allowing officer who lacked sufficient

experience to testify it is common for drug users to carry

weapons). “Though particular educational training is of course

not necessary, the court should require the proponent of the

testimony to show some connection between the special knowledge

or experience of the witness, however acquired, and the

witness’s opinion regarding the disputed factual issues in the

case.” Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190,

1202 (3d Cir. 1995).

At bottom, if lay opinion testimony is not adequately

scrutinized before it is admitted, it runs the risk of

28
implanting into a juror’s mind the conclusion that he or she is

to draw from the facts presented. See United States v.

Sanabaria, 645 F.3d 505, 515 (1st Cir. 2011). It is for this

reason that lay opinion testimony will “probably be more helpful

when the inference of knowledge is to be drawn not from observed

events or communications that can be adequately described to the

jury . . . .” Rea, 958 F.2d at 1216 (emphasis added) (citing

United States v. Fowler, 932 F.2d 306, 312 (4th Cir. 1991)).

Thus, lay opinion testimony should be used only in the instances

where the “witness cannot adequately communicate to the jury the

facts upon which his or her opinion is based,” Jackson, 688 F.2d

at 1124 (citing Skeet, 665 F.2d at 985), as “Rule 701 simply

recognizes lay opinion as an acceptable ‘shorthand’ for the

‘rendition of facts that the witness personally perceived.’”

United States v. Garcia, 413 F.3d 201, 211 (2d Cir. 2005)

(citing 4 Weinstein’s Federal Evidence § 701.03[1]); see also

Fed. R. Evid. 701 advisory comm. note (Rule 701 “retains the

traditional objective of putting the trier of fact in possession

of an accurate reproduction of the event”).

B.

An adequate foundation of personal knowledge is especially

important when it comes to providing lay opinion testimony about

drug use and addiction. The average person may have little or

no experience with drugs, and therefore this testimony falls out

29
of the realm of “common experience.” Paiva, 892 F.2d at 157.

An adequate foundation necessary for drug opinion testimony may

include a witness’s “prior use and knowledge of [a] drug and his

sampling of the substance which he identified, coupled with his

statement that the drug [he testified about] affected him in the

same manner as the drug he had previously ingested.” United

States v. Sweeney, 688 F.2d 1131, 1145 (7th Cir. 1982). Or, a

witness may give his lay opinion that a particular substance is

a certain drug, “so long as a foundation of familiarity with the

substance is established.” United States v. Durham, 464 F.3d

976, 982 (9th Cir. 2006). For example, the Eighth Circuit held

the lay opinion of a witness who identified a substance she

consumed as amphetamine was inadmissible because she had no

experience with the drug; however, the lay opinion of two other

witnesses who had previously used amphetamine was admissible.

United States v. Westbrook, 896 F.2d 330, 336 (8th Cir. 1990).

To give another example of valid lay opinion testimony, a

lay witness may opine under Rule 701 that a person is under the

influence of alcohol – this is within the realm of “common

experience.” See United States v. Mastberg, 503 F.2d 465, 470

(9th Cir. 1974) (allowing testimony that person appeared under

the influence of alcohol); see also Asplundh Mfg. Div., 57 F.3d

at 1196 (same). Conversely, lay witnesses are “not sufficiently

knowledgeable about common symptoms of drug consumption,” and

30
therefore cannot testify that a person was under the influence

of drugs without providing a foundation for the basis of their

knowledge. State v. Nobach, 46 P.3d 618, 622 (Mont. 2001) (with

a lay opinion testimony rule that directly tracks the language

of Rule 701); cf. Sanders v. United States, 373 U.S. 1, 20

(1963) (“Whether or not petitioner [testifying at trial] was

under the influence of narcotics would not necessarily have been

apparent to the trial judge.”).

In line with general evidentiary principles, the amount of

prior experience that is sufficient for an adequate foundation

should be left to the discretion of the trial judge. Harris v.

Dist. of Columbia, 601 A.2d 21, 24 n.3 (D.C. 1991). However,

the bottom line is that a witness must establish some prior

experience for the testimony to be admissible under Rule 701;

conclusory statements are not adequate. See Pedraza v. Jones,

71 F.3d 194, 197 (5th Cir. 1995); Kurina v. Thieret, 853 F.2d

1409 (7th Cir. 1988). But see United States v. Spriggs, 996

F.2d 320, 325 (D.C. Cir. 1993) (detective’s opinion about

effects of drug use was admissible because of his experience

with drug addicts).

III.

Now that the contours of Rule 701 generally and in relation

to drug testimony are adequately explained, I turn to the

31
testimony in this case. I am mindful that we review a district

court’s evidentiary rulings for abuse of discretion. Ante 16

(citing United States v. Perkins, 470 F.3d 150, 155 (4th Cir.

2006). This deferential standard of review does not require us,

however, to kowtow to a district court’s reasoning behind its

evidentiary rulings when the rulings rest on an erroneous

application of the law, as it is clear that “[a]n error of law

is, by definition, an abuse of discretion.” United States v.

Basham, 561 F.3d 302, 325-26 (4th Cir. 2009) (internal citations

omitted). As shown below, the lay opinion testimony objected to

by Baraloto fails to meet the requirements of Rule 701. Thus,

the testimony is insufficient as a matter of law, and as such,

the district court abused its discretion by admitting it.

A.

Only one witness, Amanda Boothe, testified personally to

her drug use and to the fact that she sold stolen goods at Fast

Money. * The testimony of the witnesses detailed below, however,

expands beyond personal knowledge, requiring a number of logical

leaps outside the realm of common experience. And because the

Government did not, and probably could not, lay adequate

*
While Amanda Boothe’s testimony may possibly be sufficient
to fend off Baraloto’s sufficiency of the evidence challenge,
see ante 21 n.4, this does not effect the harmless error
analysis conducted below, see infra Part IV.

32
foundation for this unrepressed testimony, it does not meet the

requirements of Rule 701.

1.

First, the vague testimony regarding the number of drug

addicts at Fast Money is inadmissible. One employee of Fast

Money made no mention of customers having physical signs of drug

use, while others said that almost every customer that walked

through Fast Money’s doors had physical markings indicating drug

use. For instance, Jerald Bradford, owner of Fast Money,

surmised that 90% of Fast Money’s clientele were drug addicts.

J.A. 878. He said he could tell “usually from IV, the needle

marks on their arms, skin pops, stuff like that.” Id. Using

similar reasoning, his brother, Scott Bradford, testified Fast

Money clients were drug abusers because “[s]ome of them had

obvious marks on their body, arms, and some were actually

bending over, they call it nodding out, to where they can’t even

stand up.” J.A. 994. And Ashley Williams, Jerald Bradford’s

step-daughter who worked at Fast Money, also said that she knew

90% of Fast Money’s customers were drug addicts because “[t]hey

just have the look of sores on them.” J.A. 1055. On the other

hand, another Fast Money employee, Michael Ender, testified that

the “[p]eople were on drugs and need[ed] money,” J.A. 1087, but

never testified to witnessing any signs of drug use or addiction

and did not testify to knowing any of the customers personally.

33
 Leaving the inconsistencies in the testimony aside, there

was no foundation laid by any of the witnesses allowing them to

testify as to a group of customers’ drug addiction. None of the

witnesses testified to having special knowledge of any drugs of

any kind. There was nothing adduced at trial to explain how

these witnesses knew what was consistent behavior with that of a

drug addict, nor how they knew what physical signs were

consistent with drug use. No specifics were given regarding who

was using drugs. And not one drug addict that sold OTC/HBAs

(other than Boothe) was identified with any certainty. There is

no indication that any of the Fast Money witnesses interacted

with these drug addicted customers on a regular basis, and in

fact, there is testimony to the contrary. See, e.g., J.A. 1054

(Testimony of Ashley Williams) (testifying she interacted with

customers “every once in a while”). This testimony lacks the

adequate foundation necessary for Rule 701 lay opinion testimony

regarding drug use.

The witnesses should have been allowed to testify as to

what they personally observed, that is permissible under Rule

701. They should have been prohibited, however, from drawing a

conclusion that these physical signs they witnessed were

evidence of drug addiction without providing a concrete

explanation as to how they knew these observations were

indicators of drug use or addiction. See United States v. Noel,

34
581 F.3d 490, 496 (7th Cir. 2009) (“[A] lay witness’s purpose is

to inform the jury what is in the evidence, not to tell it what

inferences to draw from that evidence.”). To allow witnesses to

make sprawling affirmations categorizing Fast Money’s client

base as drug addicts with no specifics to support this testimony

violates Rule 701. These vast generalizations are not based on

sufficient personal knowledge.

2.

Even assuming the opinion testimony regarding Fast Money’s

clientele’s overwhelming rate of drug addiction was permissible

under Rule 701, this was not the only inference at play in this

case. If one impermissible inference was not enough, the

witnesses then had to conclude that the drug addicts necessarily

transacted in stolen goods to support their drug habit. This

additional layer of inference goes beyond the bounds of

permissible extrapolation based on first-hand perception and

into the realm of pure speculation.

Multiple witnesses testified openly to their stereotypical

belief that all drug addicts were desperate for money and

therefore had to steal to support their habit. See, e.g., J.A.

941 (Testimony of Jerald Bradford) (when asked if he thinks

people on drugs steal, he responded “[y]ou can say I am a

skeptic”); J.A. 1093 (Testimony of Michael Ender) (“People that

were on drugs and need money, so they were out doing what they

35
had to do [i.e., steal]”); J.A. 1121 (Testimony of Daniel Mimer)

(calling customers “drug addicts, people who needed cash for,

you know, control their habits”); J.A. 1325, 1428 (Testimony of

Jerome Stal) (calling customers “crackheads” who were “in need

of money”). This testimony has nothing to do with the

witnesses’ personal observations, a fundamental requirement of

Rule 701.

The inferences drawn in this case were hardly reasonable --

I was unaware that the only way drug addicts could support their

drug habit was to steal, in bulk, “thousands of dollars” of

over-the-counter health beauty aids (an amazing feat in itself),

and turn around and sell the stolen goods for “pennies on the

dollar” at Fast Money pawn shop. Ante 20. Drug addicts do not

solely reside in “high crime” neighborhoods as the one here,

allowing for such stark generalizations. Drug addiction is an

unfortunate affliction affecting every segment of

society. See, e.g., John Byrne, New High Finance: Wall Street

Drug Use Soars, N.Y. Post, Mar. 17, 2013,

http://www.nypost.com/p/news/business/new_high_finance_gF1594vGb

hI1i0FYSliCBL. It surely cannot be that all drug users steal,

given that drug users come in all hues and creeds. Drug

addiction is not a uniform affliction with a certain set of

character traits pre-attached. Yet the Government lumped

together Fast Money’s customers, and through the inadmissible

36
lay opinion testimony painted with a broad-brush what these

(alleged) drug addicted customers likely can or cannot do.

Outside of pure speculation, the only evidence provided as

the basis for the witnesses’ opinion that the goods sold at Fast

Money were stolen was the fact that the goods still had stickers

on them, see J.A. 1056 (Testimony of Ashley Williams), and that

the items were sold at low prices, see J.A. 1179-80 (Testimony

of Warren Culver). This evidence is just as consistent,

however, with the “entirely innocuous” aspects of a secondary

OTC/HBA market. United States v. Ebert, No. 96-4871, 1999 WL

261590, at *13, *22 (4th Cir. 1999) (unpublished). As such,

they cannot be the basis for personal knowledge that the goods

were stolen.

The Government, in large part, went about proving that Fast

Money dealt in stolen goods by allowing witnesses to opine that

drug addicts in this neighborhood were poor and desperate, and

therefore had to steal as a condition subsequent. I balk at the

notion that a witness could testify as a matter of personal

knowledge that goods were stolen solely because of a person’s

perceived economic circumstance and supposed drug addiction.

This testimony not only fails to satisfy Rule 701, in my

opinion, it also allows “the very stereotype the law condemns.”

Powers v. Ohio, 499 U.S. 400, 410 (1991).

37
 3.

And if it was not clear that the Government was relying on

conjecture and stereotype to prove its case, it then introduced

similar testimony from three witnesses who testified that stolen

goods were sold by drug addicts at other area pawn shops. Not

only did their testimony suffer the same fatal flaws as the

testimony above, even more troubling is the lack of relevance of

the testimony as to whether Fast Money’s goods were stolen and

Baraloto’s knowledge of this fact.

Warren Culver was allowed to testify, over Baraloto’s

objection, that the goods sold at TS Liquidators (a neighborhood

pawn shop), were stolen because “there’s no other way you could

possibly get that stuff to sell that cheap.” J.A. 1179-80.

Likewise, Daniel Mimer never testified to going to Fast Money,

but did work at another neighborhood pawn shop, “We Buy,” and

was permitted to give his opinion that We Buy’s clientele were

“basically drug addicts, people who needed cash for, you know,

control their habits, basically.” J.A. 1121. Mimer never saw

Baraloto at We Buy. Finally, Jerome Stal, who worked at “EZ

Money” – another pawn shop in the area, gave opinion testimony

characterizing the goods sold at EZ Money as stolen. The

Government had Stal read into the record the following sign

displayed at EZ Money as notice for its employees:

38
 This goes for everyone here. Regardless of what some
of our customers may decide to do with their time and
money when they [visit] this store, we have no right
to criticize them for their decisions. The next
employee that calls a customer a junkie, drug addict,
dope fiend, et cetera, will no longer have a job.
Remember, these people make sure that we have money at
the end of the week.

J.A. 1319. And when asked by the Government if EZ Money’s

customers were the type to engage in couponing or any other

legitimate means of transacting in the OTC/HBA secondary market,

Stal said no, “The people that I saw . . . didn’t seem the type

of person that they’re disciplined to go do this for hours and

hours and come into a pawn shop and sell it to the pawn shop.”

J.A. 1396. This testimony was not only flawed under Rule 701,

but it was irrelevant and prejudicial under Rules 401 and 403.

The testimony was inadmissible.

***

In short, the conclusions of at least seven Government

witnesses relied on multiple inferences centered on

stereotypical portrayals of urban blight. The testimony was not

based on the witnesses’ first-hand perception and did not have

an adequate foundation as required by Rule 701. Nor was much of

the testimony relevant to what the Government was required to

prove in this case. The admission of this line of testimony

runs afoul of the Federal Rules of Evidence, and as such, the

39
district court erred as a matter of law by allowing this

testimony into evidence.

B.

The story woven throughout the lay opinion testimony is

clear. Fast Money is located in a dangerous, drug-ridden

Baltimore neighborhood. See ante 6 (Fast Money was in a “[v]ery

rough [neighborhood], [with] a lot of drugs, [and] homicides”).

Given this community, it is no surprise that most, if not all,

of Fast Money’s customers were not only drug users, but drug

addicts. See ante 6-7. (“[A]bout 90% of [Fast Money’s]

clientele was comprised of drug addicts”). And because the drug

addicts in this rough neighborhood are not only poor, but

exceedingly unruly, there is no legitimate means by which Fast

Money’s clientele could partake in the secondary OTC/HBA market.

See ante 11 (Fast Money’s clientele consisted “typically, of

drug addicts who needed money for drugs”); Appellee’s Br. 51

(who did not have “the capital or the discipline to engage in

organized couponing”). As such, anyone with a pair of eyes and

functioning brain knew Fast Money was transacting in stolen

goods.

Based on this simplistic stereotype-based narrative, “any

reasonable observer could conclude, as a matter of common sense,

that the goods were stolen.” Ante 20. And from here, a juror

could conclude, as a matter of “common sense,” that Baraloto

40
knew the goods were stolen. But taking a step back, these so-

called “common sense” conclusions required the witnesses to make

a number of logical leaps to form their opinions, skirting

around the personal knowledge requirement found in the Federal

Rules of Evidence. These “common sense” conclusions amount to

nothing more than speculation and stereotype based on socio-

economic status, geographic location, and personal appearance.

This line of reasoning is dangerous – I do not see what would

stop the Government from indicting and convicting any person who

conducted business at Fast Money or a similar neighborhood pawn

shop. It is for this reason that allowing a witness to base his

or her opinion on “common sense” is speculation not grounded on

personal observations. See United States v. Whitworth, 856 F.2d

1268, 1284-85 (9th Cir. 1988). Admitting this testimony

regarding both customer addiction and their belief that

customers were selling stolen goods fails to satisfy the

requirements of Rule 701.

C.

As a matter of principle, I find it extremely objectionable

what the Government did here. The poverty and appearance of

Fast Money’s customers was not probative, let alone dispositive,

in determining the key question at hand – whether the goods sold

at Fast Money were stolen; and it is wholly irrelevant to

whether Baraloto knew the goods were stolen. But still the

41
Government relied on this testimony, most probably because

“[t]he impact of narcotics addiction evidence upon a jury of

laymen is catastrophic . . . the public . . . has been taught to

loathe those who have anything to do with illegal narcotics.”

Washington v. LeFever, 690 P.2d 574, 577 (Wash. 1984) (en banc).

And apparently goaded by the district judge’s assertion that the

Government is “entitled to introduce evidence of any tendency to

prove that the goods were stolen,” ante 9, the Government

presented a case bereft of evidence that would actually tend to

prove the goods sold at Fast Money were stolen. There were no

reports of neighborhood OTC/HBA crime waves. Store logs were

not reproduced evincing OTC/HBAs were stolen and subsequently

sold at Fast Money. Evidence such as this may have been helpful

to the jury in deciding whether Fast Money dealt in stolen

goods. Instead, the Government’s case hinged on “factors . . .

wholly unrelated to the blameworthiness of [Baraloto].” Booth

v. Maryland, 482 U.S. 496, 504 (1987). While the Government may

have been “entitled,” or more accurately, required, to prove its

case, this “entitlement” is necessarily limited by the Federal

Rules of Evidence, which the Government did not adhere to.

IV.

With the errors finally revealed, Baraloto still must

overcome harmless error review, because “we will not reverse if

42
we can say ‘with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error.’”

Ante 17 (quoting United States v. Brooks, 111 F.3d 365, 371 (4th

Cir. 1997)). There is no doubt in my mind that the repeated

evidentiary errors “substantially swayed” the jury’s verdict,

warranting a new trial under the cumulative error doctrine. See

United States v. Lighty, 616 F.3d 321, 371 (4th Cir. 2010).

We have previously noted that “[i]f more than one error

occurred at trial, then all errors are aggregated to determine

whether their cumulative effect mandates reversal.” United

States v. Montague, 202 F.3d 261 (4th Cir. 2000) (unpublished

table decision); see also United States v. Basham, 561 F.3d 302,

330 (4th Cir. 2009) (explaining the cumulative error doctrine).

This aggregation is necessary because “[a] column of errors may

sometimes have a logarithmic effect, producing a total impact

greater than the arithmetic sum of its constituent parts.”

United States v. Sampson, 486 F.3d 13, 51 (1st Cir. 2007)

(internal citations omitted).

Baraloto is not the victim of an isolated evidentiary

error. The district court allowed at least seven witnesses to

repeatedly opine about matters of which they had no personal

knowledge. The aggregation of the errors in this case had a

grave impact. As the district court acceded, this repetitive

43
lay opinion testimony was “pertinent” to the Government proving

both that Baraloto transacted in stolen goods and that he had

personal knowledge the goods were stolen, see ante 9 -- the two

most contentious elements of the Government’s case. To boot,

the Government’s proof that Baraloto knew the goods he

transacted in were stolen rested entirely on circumstantial

evidence. Without this testimony the Government’s case against

Baraloto would have been flimsy at best.

The pervasive and impermissible use of lay opinion

testimony in this case “so fatally infect[ed] the trial that

[it] violated the trial’s fundamental fairness.” United States

v. Basham, 561 F.3d 302, 330 (4th Cir. 2009) (quoting United

States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004)). The

inadmissible testimony permeated the Government’s case and was

the Government’s modus operandi for proving Baraloto’s guilt.

There was not a significant amount of evidence outside of the

impermissible lay testimony inculpating Baraloto. But cf.

United States v. Banks, 482 F.3d 733, 741-42 (4th Cir. 2007)

(the substantial inculpatory evidence rendered any error

harmless). The Government’s case was constructed around this

testimony and the timeworn story it relayed. Pursuant to the

cumulative error doctrine, therefore, the mountain of

evidentiary errors in this case warrants a new trial.

44
 V.

The lay opinion testimony in this case was not based on the

witnesses’ first-hand perception as required by Rule 701.

Instead, the testimony was an amassment of inferences

capitalizing on an all-too-familiar story. Given the pervasive

nature of the impermissible lay opinion testimony in this case,

I would reverse and remand for a new trial due to evidentiary

errors. I respectfully, but firmly, dissent.

45