United States v. Kellogg

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

12-7-2007

USA v. Kellogg
Precedential or Non-Precedential: Precedential

Docket No. 05-1893

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 PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No: 05-1893
_______________

UNITED STATES OF AMERICA

v.

EDWARD V. KELLOGG,

Appellant
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-00321)
District Judge: Honorable James Knoll Gardner
_______________

Argued September 25, 2007

Before: AMBRO, JORDAN and ROTH, Circuit Judges

(Filed: December 7, 2007)
_______________
Seth Weber [ARGUED]
United States Attorney’s Office
504 West Hamilton Street - Suite 3701
Allentown, PA 17901

Robert Epstein
Brett G. Sweitzer [ARGUED]
Defendant Assn. Of Philadelphia
Federal Court Division
601 Walnut Street - Ste. 504
Philadelphia, PA 19106

_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

Edward V. Kellogg (“Kellogg”) appeals from a

judgment of conviction following a jury verdict finding him

guilty on thirty-four counts of mail fraud pursuant to 18

U.S.C. §§ 1341 and 2. The primary issue before us is whether

the District Court erred by allowing the government to cross-

examine a character witness with a question based on the

-2-
assumption of Kellogg’s guilt. Finding no error, we will

affirm the judgment of the District Court.

BACKGROUND1

Kellogg was the owner, President, and Quality Control

Officer of Johnston Laboratories, Inc. (“Johnston

Laboratories”), located in New Cumberland, Pennsylvania.

Johnston Laboratories provided environmental testing

services, specifically, analytical testing of environmental

samples, including water and wastewater, in order to

determine the presence and concentration of contaminants.

Many of Johnston Laboratories’ customers were required to

comply with environmental laws and regulations administered

1
Because we are reviewing a guilty verdict, we have cast
the facts in the light most favorable to the government. See
United States v. Pungitore, 910 F.2d 1084, 1097 (3d Cir.
1990) (“We are bound, after a jury has delivered a guilty
verdict, to interpret the evidence in a light most favorable to
the government.”).

-3-
by the United States Environmental Protection Agency

(“EPA”) and the Pennsylvania Department of Environmental

Protection (“PA DEP”). Among the tests that customers

ordered from Johnston Laboratories were those for Volatile

Organic Chemicals (“VOC”), contaminants whose presence

in water is regulated by the EPA and PA DEP. In particular,

Johnston Laboratories’ customers required testing under an

EPA protocol called Method 601/602, which tests for

approximately fifty-six contaminants, as opposed to EPA

Method 624, which tests for approximately thirty

contaminants.

From May 1998 to March 1999, Johnston Laboratories

did not possess the appropriately operating equipment to

perform VOC testing under EPA Method 601/602. During

that time period, Johnston Laboratories subcontracted its

VOC testing and analysis to another environmental testing

-4-
laboratory, Hydro-Analysis Associates, Inc. (“Hydro-

Analysis”). However, Kellogg knew that Hydro-Analysis

also could not and did not perform VOC testing under EPA

Method 601/602, as required by Johnston Laboratories’

customers, but instead used EPA Method 624. Nonetheless,

Kellogg authorized Hydro-Analysis to test the water samples

of Johnston Laboratories’ customers using the less sensitive

method.

Kellogg caused Johnston Laboratories to mail to its

customers reports falsely stating that EPA Method 601/602

had been used to test the samples, even though only EPA

Method 624 had been used. Kellogg, also through Johnston

Laboratories, fraudulently billed customers for the results of

environmental VOC testing that was not performed according

to the methods ordered by those customers.

-5-
 In all, Kellogg was charged with causing thirty-four

separate, false and fraudulent VOC environmental test reports

and billing statements for those reports to be delivered by

mail to Johnston Laboratories’ customers from May 1998 to

March 1999, in violation of 18 U.S.C. §§ 1341 and 2.

Following a three week jury trial, Kellogg was found guilty

on all counts. He appeals the judgment of the District Court,

entered March 16, 2005. The District Court had jurisdiction

pursuant to 13 U.S.C. § 3231. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291.

DISCUSSION

I. Cross-examination of Opinion Character Witnesses

Kellogg claims his right to due process was violated

when the District Court allowed the government to cross-

examine certain of his character witnesses using a

hypothetical that assumed he was guilty of the crimes charged

-6-
in this case. We review a District Court’s ruling on the scope

of cross-examination for abuse of discretion. United States v.

Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000); United States

v. Furst, 886 F.2d 558, 577 (3d Cir. 1989). As to the District

Court’s legal interpretation of the Federal Rules of Evidence

and its ruling on Kellogg’s due process claim, our review is

plenary. See United States v. Bobb, 471 F.3d 491, 497 (3d

Cir. 2006); United States v. Mack, 229 F.3d 226, 231 (3d Cir.

2000) (citation omitted).

Kellogg raises identical issues with respect to two of

his character witnesses – Saleh Malik and Fred Pennington,

Jr. The circumstances of the cross-examination of each is

reviewed in turn.

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 A. Saleh Malik

Defense witness Saleh Malik gave testimony

supporting Kellogg’s character as a law-abiding citizen.

During the government’s cross-examination of Malik,

Kellogg objected to the following question2:

2
During trial, defense counsel merely stated “objection” on
the record. (Appx. 1998-9.) Once overruled, the trial
proceeded without any additional discussion of the question
posed to Malik. Notably, the record does not reflect that
Kellogg’s counsel advanced the argument about guilt-
assuming hypotheticals that is now presented on appeal.
Normally, this would constitute a waiver of the argument.
See Fed. R. Evid. 103(a) (restricting appellate review of
evidentiary errors to those in which the complaining party has
“stat[ed] the specific ground of objection, if the specific
ground was not apparent from the context ....”). Although the
degree of specificity required by Rule 103(a) is not perfectly
clear, it has been established that general objections will not
suffice. United States v. Sandini, 803 F.2d 123, 126 (3d Cir.
1986) (citing United States v. Blackshear, 568 F.2d 1120,
1121 (5th Cir. 1978)). However, the government has not
advanced a waiver argument, and both parties have addressed
the issue on its merits in their briefing and at oral argument.
Since we are addressing the guilt-assuming hypothetical
argument with respect to the cross-examination of
Pennington, we choose to address it as to the cross-

-8-
 Q. Do you have any knowledge about the way Mr.
Kellogg ran his environmental laboratory back in
1998?...3

The District Court overruled the objection and said that

“[t]he government may test the opinions concerning character,

and the testimony concerning reputation, [by] testing the

witness’s knowledge of the defendant and his business....”

(Appx. 1999.)

On appeal, Kellogg argues that the challenged question

was improper. More specifically, Kellogg’s position is that

the cross-examination was impermissible because it assumed

the criminal conduct at issue in this case had in fact occurred

and that the question thereby violated his right to due process

examination of Malik as well.
3
The question elicited this brief response: “I know
generally, like, you know, he ran the laboratory, but I wasn’t
aware how he ran the laboratory.” (Appx. 1999.)

-9-
by undermining the presumption of innocence. The

government responds that the question was unobjectionable

because the prosecution was entitled to test the extent of

Malik’s knowledge of Kellogg’s business practices.

Control of cross-examination is largely within the trial

court’s discretion. See Michelson v. United States, 335 U.S.

469, 480 (1948) (...[R]arely, and only on a clear showing of

prejudicial abuse of discretion [,] will Courts of Appeals

disturb the ruling of trial courts on this subject.”). Federal

Rule of Evidence 405(a) expressly allows the government to

cross-examine character witnesses regarding their knowledge

of specific instances of the defendant’s conduct. Fed. R.

Evid. 405(a) (“In all cases in which evidence of character or a

trait of character of a person is admissible, proof may be made

by testimony as to reputation or by testimony in the form of

an opinion. On cross-examination, inquiry is allowable into

-10-
relevant specific instances of conduct.”). Such cross-

examination may help the jury evaluate the reliability of the

character testimony. United States v. Shwayder, 312 F.3d

1109, 1120 (9th Cir. 2002).

Here, the government simply asked Malik whether he

knew how Kellogg ran his business, a question which plainly

falls within the purview of Rule 405(a). We are unpersuaded

by Kellogg’s argument that the government’s question to

Malik was in essence a guilt-assuming hypothetical. The

question does not assume Kellogg’s guilt; it does not refer

even obliquely to the conduct that formed the basis of the

charged crimes. Rather, because Malik offered his personal

opinion about Kellogg’s character, the District Court properly

allowed the prosecution to test the foundation for that opinion

by asking a question that could elicit a response

demonstrating how well Malik knew Kellogg in the relevant

arena of day-to-day business. Therefore, the District Court

-11-
did not err by allowing the challenged cross-examination

question put to Malik.

B. Fred Pennington, Jr.

Kellogg also argues that the government’s cross-

examination of Fred Pennington, Jr. contained an

impermissible guilt-assuming hypothetical. Like Malik,

Pennington testified to Kellogg’s character as a law-abiding

citizen. Kellogg objected when the government, during cross-

examination, posed the following line of questions:

Q. Sir, would you agree with me that a person
who knows that a laboratory used one particular
analytical method, but then who reports out a
complete-ly different analytical method on final
reports of analysis to its customers, would your
opinion be different about that person being [a]
law abiding citizen?

A. Is this a hypothetical question, or is this
specific to this case?

Q. I’m asking you a hypothetical question.

A. I think my opinion would be different.

-12-
(Appx. 2021.) The Court overruled Kellogg’s objection and,

immediately after the quoted line of questioning, sua sponte

instructed the jury as follows:

This evidence – this question and answer
that was just asked of this witness to test his
opinion was offered for a limited purpose and I
have to briefly explain to you the limitations of
what it was presented for and what it was not
presented for.
This witness on direct examination
expressed opinion that the defendant had a
character – the defendant’s character was
consistent with that of being a law abiding
citizen. He also testified that he knows people
who know the defendant, and that the
defendant’s reputation among others for being a
law abiding citizen is excellent. So he gave
both what we call opinion evidence and
reputation evidence on the defendant’s character
for being a law abiding citizen. In his opinion,
he’s a law abiding citizen, and his reputation in
the community for being a law abiding citizen is
excellent according to the testimony.
Now, as [is] the case of any witness, you
must decide whether you believe or you don’t
believe the testimony of the witness. We will
give you more detailed instructions at the end of
the trial about what you do with opinion
evidence and what you do with reputation
evidence, and how that might affect your final
decision in your verdict in the case. For now
it’s only necessary and important for me to
indicate to you that the cross-examination which

-13-
 was heard by you is cross-examination on the
opinion evidence. It is not cross-examination
on the reputation evidence. In other words, he
expressed the opinion that the person, the
defendant has a character – his character is
consistent with being a law abiding citizen, and
so he was permitted to be asked whether – if
someone used a particular analytical method,
but reported to a customer that he used a
different analytical method, would that
hypothetical circumstance change your opinion
or result in your giving – have a different
opinion, and his answer was yes.
So you may consider that in weighing the
opinion testimony of this particular witness’s
opinion, but you may not consider that answer,
and it’s not being offered, on his other
testimony that the defendant has a reputation,
excellent reputation in the community for being
law abiding, because that reputation is based on
the views and opinions of others, not of this
individual. Those others can’t be cross-
examined by this question, that’s why we limit
it.

(App. 2022-23.)

As detailed herein, the District Court subsequently

stated its reasons for overruling Kellogg’s objection on the

record, outside of the presence of the jury, prior to giving this

limiting instruction.

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 1. Permissibility of a Guilt-Assuming
Hypothetical

Kellogg argues that the District Court violated his right

to due process and erred under Federal Rule of Evidence

405(a) by permitting the government to pose a question that

assumed Kellogg is guilty of the charged offense.

The District Court relied primarily on United States v.

Curtis, 644 F.2d 263 (3d Cir. 1981), in overruling Kellogg’s

objection to the question posed to Pennington. There we

recognized that Rule 405(a) “provides that proof of character

may be made by testimony as to reputation or by testimony in

the form of an opinion” and emphasized the necessity “for

keeping separate the two different types of character

evidence” permitted under the Rule – those being reputation

character evidence and opinion character evidence. Id. at

267, 268 (internal quotation marks omitted). In sum,

reputation character evidence is “that of the [defendant’s]

reputation in the community for the character trait at issue,”

id. at 267, while opinion character evidence is elicited when a

-15-
defendant’s character witness provides his or her own

personal opinion of “any facet of the [defendant’s] character,”

id. at 265. The District Court also considered United States v.

Mason, 933 F.2d 406 (4th Cir. 1993), in which the United

States Court of Appeals for the Fourth Circuit held that a

guilt-assuming hypothetical is improper regardless of whether

the government is cross-examining a reputation or an opinion

character witness. However, the District Court declined to

follow Mason because it found the Fourth Circuit’s approach

contrary to Federal Rule of Evidence 405(a) and our decision

in Curtis.

As noted in the District Court’s limiting instruction,

there is a distinction between reputation character evidence

and opinion character evidence. See Curtis, 644 F.2d at 269

(“...Rule 405(a) has not effected a merger between reputation

and opinion evidence.”). However, that distinction has not

been significant to a majority of the Courts of Appeals that

have addressed the propriety of guilt-assuming hypotheticals.

-16-
Without necessarily distinguishing whether the issue involved

cross-examining an opinion witness or a reputation witness,

those courts have broadly held such questions are improper.

See United States v. Shwayder, 312 F.3d 1109, 1121 (9th Cir.

2002) (“The prosecution’s use of guilt-assuming hypothetical

questions on cross-examination of Shwayder’s character

witnesses...constituted error.”); United States v. Guzman, 167

F.3d 1350, 1352 (11th Cir. 1999) (“The government may

not...pose hypothetical questions that assume the guilt of the

accused in the very case at bar.”); United States v. Mason, 993

F.2d 406, 408 (4th Cir. 1993) (guilt-assuming hypotheticals

are “not proper and should not have been allowed”); United

States v. Oshatz, 912 F.2d 534, 539 (2d Cir. 1990) (“...[A]

hypothetical question based on the assumption of guilt should

not be asked.”) (internal quotation marks and citation

omitted); United States v. Williams, 738 F.2d 172, 177 (7th

Cir. 1984) (“We hold that permitting this line of cross-

examination [guilt-assuming hypotheticals] over objection

-17-
was error, and we see no reason to treat reputation and

opinion witnesses differently in this regard.”) (citation

omitted); United States v. McGuire, 744 F.2d 1197, 1204 (6th

Cir. 1984) (“It would be error to allow the prosecution to ask

the character witness to assume defendant’s guilt of the

offenses for which he is then on trial.”); but see United States

v. White, 887 F.2d 267, 275-6 (D.C. Cir. 1989) (using guilt-

assuming hypotheticals during cross-examination of character

witnesses “who...give their own opinion of the defendant’s

character is not error”). Generally, the reason given for these

holdings is that a guilt-assuming hypothetical impairs the

presumption of innocence and thus violates the defendant’s

due process rights. Guzman, 167 F.3d at 1352; Mason, 993

F.2d at 409; Oshatz, 912 F.2d at 539; Shwayder, 312 F.3d at

1121; Williams, 738 F.2d at 177.

A few Courts have also noted that an alternative basis

for holding guilt-assuming hypotheticals are improper is that

they are unfairly prejudicial to the defendant, Oshatz, 912

-18-
F.2d at 539, Williams, 738 F.2d at 177, which would indeed

seem to follow necessarily from a conclusion that there had

been a due process violation. The Second Circuit has

acknowledged that a guilt-assuming hypothetical may elicit

evidence of some probative value, particularly when posed to

an opinion character witness, since “[s]teadfast adherence to a

favorable opinion by a witness asked to assume the

defendant’s guilt might provide some basis for concluding

that the witness is simply supporting the defendant, rather

than providing credible testimony about his character.”

Oshatz, 912 F.2d at 539. However, the Court concluded that

any probative value was outweighed by the risk that “after a

jury has repeatedly heard a prosecutor assure a trial judge that

he has a good faith basis for asking permitted hypothetical

questions, the jury might infer from the judge’s permission to

ask a guilt-based hypothetical question that the prosecutor has

evidence of guilt beyond the evidence in the record.” Id. The

Seventh Circuit also commented on the potentially prejudicial

-19-
impact of a guilt-assuming hypothetical, suggesting that such

questions allow “the prosecution to foist its theory of the case

repeatedly on the jury.” Williams, 738 F.2d at 177.

Several other Courts of Appeals have had the

opportunity to consider guilt-assuming hypotheticals, but only

in the context of reputation testimony, where such questions

are uniformly held to be impermissible. See United States v.

Barta, 888 F.2d 1220, 1224-5 (8th Cir. 1989); United States v.

Polsinelli, 649 F.2d 793, 796-7 (10th Cir. 1981); United

States v. Calendaria-Gonzalez, 647 F.2d 291, 294 (5th Cir.

1977). These Courts too have reasoned that allowing the

prosecution to ask a question that assumes the defendant’s

guilt would infringe upon the presumption of innocence.

Barta, 888 F.2d at 1224; Calendaria-Gonzalez, 547 F.2d at

294. The Fifth Circuit has provided the further persuasive

explanation that a guilt-assuming hypothetical cannot sensibly

be asked of a reputation witness because reputation testimony

is based on what the witness heard in the community about

-20-
the defendant, and “[o]bviously the character witness ... had

heard nothing in the community about [the defendant’s] post

conviction reputation when he had been convicted of nothing

whatsoever.” Calendaria-Gonzalez, 546 F.2d at 294.

2. The District Court Did Not Err

With these views of our sister Circuits in mind, we turn

to the main issue presented by Kellogg’s arguments on

appeal: whether the government’s question to Pennington was

impermissible. The answer to that question turns on the

meaningful distinction between reputation and opinion

character witnesses.4 We agree with the consensus of the

4
Perhaps the clearest exposition of this distinction between
reputation character witnesses and opinion character
witnesses is set forth in the concurring opinion in the Second
Circuit’s Oshatz case. Then-District Judge Michael B.
Mukasey, sitting by designation, asserted that a guilt-
assuming hypothetical should be permissible during the cross-
examination of an opinion character witness. First, he
explained why such a question has significant probative
value:

A jury evaluating the testimony of an opinion
witness...must determine two things: how well
the witness knows the defendant, and by what

-21-
 standard the witness judges the defendant. Both
are essential in order for the jury to weigh the
testimony. If the witness does not know the
defendant well, it is unlikely the witness will
have seen enough of the defendant’s behavior to
judge his character. If the witness’ judgment is
distorted either by such partisanship that the
witness would think highly of the defendant
despite misbehavior, or by a warped ethical
standard, the witness’ opinion may be
correspondingly discounted. A strong enough
partisan would swear truthfully that the
defendant is a person of good character even if
he has committed the crime on trial; a witness
who thinks the crime on trial is not inconsistent
with good character would do the same. The
question at issue in this case probes both the
witness’ bias and the witness’ own standards by
asking whether the witness would retain a
favorable opinion of the defendant even if the
evidence at trial proved guilt.

Oshatz, 912 F.2d at 544. Judge Mukasey then endeavored to
rebut the view that a guilt-assuming hypothetical would
infringe upon the presumption of innocence. He reasoned that
no rational jury could conclude that, because a witness was
asked to assume the defendant’s guilt for the purpose of
testing that witness’ opinion, it should therefore apply a
similar assumption in weighing the evidence. Id. at 545.
Furthermore, he noted, there are several procedures that
protect the presumption of innocence. Following the
examination of a character witness, the trial judge instructs
the jury that any hypothetical was used for the limited purpose
of testing the witness’ opinion and does not bear on the

-22-
Courts of Appeals that posing a guilt-assuming hypothetical

to a reputation character witness is improper. Cf. Curtis, 644

F.2d at 269 (“...[A] reputation witness can only be examined

on matters reasonably proximate to the time of the alleged

offense and likely to have been known to the relevant

community at that time.”). Because a reputation character

witness, by definition, can only provide testimony about the

defendant’s reputation in the community, a person testifying

regarding the defendant’s reputation at the time of the crime

can only speculate about how information regarding the crime

would affect the community’s assessment of the defendant,

and a witness’s speculation in that regard is of no probative

value at all.

As to cross-examination of opinion character

witnesses, however, while we recognize that a question like

the one posed by the government in this case may prove

defendant’s guilt or innocence. Id. In addition, the
presumption of innocence is reiterated in the jury charge and
often in the defense’s summation. Id.

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problematic if it arises in circumstances that implicate the

presumption of innocence or otherwise undermine due

process, such circumstances are a possibility and by no means

a certainty. In our view, there is nothing inherent in guilt-

assuming hypotheticals, in the abstract, that makes them

unfairly prejudicial, let alone so prejudicial as to constitute a

per se violation of due process. We therefore see no need to

adopt a bright-line rule prohibiting a potentially probative

type of inquiry. Generally speaking, a person testifying

regarding a present opinion should be open to cross-

examination on how additional facts would affect that

opinion. In the context of opinion character testimony cross-

examination about the charged crime tests “both the witness’

bias and the witness’ own standards by asking whether the

witness would retain a favorable opinion of the defendant

even if the evidence at trial proved guilt.” Oshatz, 912 F.2d at

544 (Mukasey, J., concurring). Such evidence may aid in the

-24-
jury’s ultimate credibility determinations and in deciding how

much weight to give to a defendant’s character evidence.

In this case, the District Court did not err by permitting

the government to pursue the challenged cross-examination of

Pennington. Cf. United States v. Palmere, 578 F.2d 105, 107

(5th Cir. 1978) (“[A]ny reversal here would have to rest on a

determination that one asking of such questions [guilt-

assuming hypotheticals] constitutes plain error. We conclude

that it does not.”). The parties agree that the question posed

to Pennington was relevant,5 and its hypothetical nature was

so emphasized as to allay any real concern about undermining

the presumption of Kellogg’s innocence. Further, because it

was but one question posed to one witness during the course

of a three-week trial, this is not a situation where Kellogg was

unfairly prejudiced by the prosecution repeatedly “foist[ing]

its theory of the case...on the jury.” Williams, 738 F.2d at

5
Both government and defense counsel agreed, during oral
argument, that the question posed to Pennington was indeed
relevant to the case.

-25-
177. Nor was this a scenario, such as the one contemplated in

Oshatz, where the jury “repeatedly hear[d] [the] prosecutor

assure [the] trial judge that he ha[d] a good faith basis for

asking permitted hypothetical questions” and thus

“infer[red]...that the prosecutor ha[d] evidence of guilt beyond

the evidence in the record.” 912 F.2d at 539. Finally, while

the asking of a guilt-assuming hypothetical has been found to

be reversible error when the case involved a swearing contest

between the defendant and a key government witness, see,

e.g., United States v. Polsinelli, 649 F.2d 793, 798 (10th Cir.

1981) (finding reversible error where the case “was, in a

sense, a one-on-one situation, i.e., it was the word of the

defendant against the word of McFarland, the key government

witness”), that plainly was not the case here. To be clear,

we are not suggesting, let alone holding, that guilt-assuming

hypotheticals can properly be asked of opinion character

witnesses in every case. However, in light of the facts and

circumstances of this case, the District Court did not err by

-26-
permitting the government’s cross-examination of Pennington

with the guilt-assuming hypothetical at issue.6

II. The District Court Did Not Abuse its Discretion in
Admitting Evidence Offered Pursuant to Rule 404(b)

Kellogg also argues that the District Court erred by

allowing the government to introduce certain evidence

pursuant to Federal Rule of Evidence 404(b).7 When

considering the District Court’s decisions on the admission of

6
It seems that the issues surrounding guilt-assuming
hypotheticals may typically be avoided by asking an opinion
character witness about specific details raised by other
evidence in the case, rather than putting to the witness a
hypothetical that incorporates the conclusion to which the
details might lead. Such an approach could have the added
benefit of greater persuasive force, since jurors may be
likelier to be persuaded by evidence that leads logically to a
conclusion than by an abrupt presentation of the conclusion
itself.
7
Federal Rule of Evidence 404(b) provides, in relevant part:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or
absence of mistake or accident....
Fed. R. Evid. 404(b).

-27-
evidence, we review for abuse of discretion. United States v.

Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994). Rule 404(b) is a

rule of inclusion rather than exclusion. United States v.

Givan, 320 F.3d 452, 460 (3d Cir. 2003) (citing Jemal, 26

F.3d at 1272); see also United States v. Copple, 24 F.3d 535,

545 (3d Cir. 1994) (“Proving specific intent in mail fraud

cases is difficult, and, as a result, a liberal policy has

developed to allow the government to introduce evidence that

even peripherally bears on the question of intent.”). Hence,

“[t]rial court rulings under Rule 404(b) ... may be reversed

only when they are ‘clearly contrary to reason and not

justified by the evidence.’” United States v. Balter, 91 F.3d

427, 437 (3d Cir. 1996) (citing United States v. Bethancourt,

65 F.3d 1074, 1079 (3d Cir. 1995), cert. denied, 516 U.S.

1153, 116 S. Ct. 1032, 134 L. Ed. 2d 109 (1996) (citation

omitted)). Similarly, in order to justify reversal of a District

Court’s balancing of probative and unfairly prejudicial

qualities of evidence under Rule 403, the District Court’s

-28-
“analysis and resulting conclusion must be ‘arbitrary or

irrational.’” United States v. Universal Rehabilitation Services

(PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000) (citation

omitted). Indeed, “[i]f judicial self-restraint is ever desirable,

it is when a Rule 403 analysis of a trial court is reviewed by

an appellate tribunal.” Id. (citation omitted). Given these

standards, we hold that the District Court did not abuse its

discretion in this case.

The District Court admitted evidence that PA DEP

revoked Johnston Laboratories’ certification for testing

drinking water. It also admitted the testimony of two former

Johnston Laboratories employees regarding deficient

procedures at Johnston Laboratories and it admitted evidence

of certain misrepresentations Kellogg made to PA DEP. The

challenged evidence was offered by the government as proof

of Kellogg’s knowledge and fraudulent intent, pursuant to

Rule 404(b). We address each of those sets of evidence in

turn.

-29-
 A. The Decertification Evidence

Kellogg argues that the decertification evidence was

irrelevant to the charges in this case, as it pertained only to

Johnston Laboratories’ decertification for drinking water

testing, as opposed to non-drinking water testing. Kellogg

also argues that the evidence is impermissible under Rule

404(b) because it is being offered for an improper purpose

and not for one of the specific reasons articulated by the Rule.

The decertification evidence was provided by James

Yoder and Richard Sheibley. Yoder, an employee in the lab

certification section of PA DEP’s Bureau of Laboratories,

testified as an expert in environmental lab certification and

stated that he knew Kellogg because Johnston Laboratories

applied to be a certified lab in the PA DEP drinking water

program.8 Yoder conducted a February 20, 1997 inspection

of Johnston Laboratories and wrote a report regarding that

8
The record indicates that there is no certified program for
waste water or ground water analysis. (Appx. 1530.)

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inspection on March 12, 1997, which he subsequently sent to

Kellogg. Yoder provided detailed testimony on the numerous

deviations9 set forth in his written report, including problems

with the laboratory relating to VOC analysis.

Yoder returned to Johnston Laboratories for another

inspection on January 28 and 29, 1998, and prepared a

February 20, 1998 report about that inspection that was also

sent to Kellogg. Some of the deviations found during the

February 20, 1997 inspection were not corrected and

remained as deficiencies during the January 1998 inspection,

particularly those related to quality control and quality

assurance. The PA DEP inspectors discussed these

continuing deficiencies with Kellogg.

Richard Sheibley, the chief of the PA DEP laboratory

accreditation program, testified as an expert on laboratory

accreditation. Sheibley knew about Yoder’s inspection of

9
In this context, “deviations” refers to instances of actual
procedures differing from approved or required procedures at
Johnston Laboratories.

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Johnston Laboratories in February 1997, and Sheibley

personally participated in the January 28 and 29, 1998 on-site

inspection of Johnston Laboratories. He met with Kellogg

and other Johnston Laboratories employees to discuss the

inspection procedure before the actual inspection on January

28, 1998. During the two day on-site inspection, fifty-seven

deviations were found. Sheibley testified that the inspectors

conducted an exit interview with Kellogg during which they

discussed the numerous deviations and required corrective

actions. Sheibley further testified that, due to the number of

deviations found during the inspection, PA DEP decided to

decertify Johnston Laboratories, or, in other words, to remove

it from the list of labs approved to do drinking water testing.

Sheibley testified that the decision to decertify

Johnston Laboratories was based, in part, on the need to

protect the public’s health, safety and welfare. He stated that

Johnston Laboratories did not follow its own required quality

control procedures, that Kellogg, as the laboratory supervisor,

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was responsible for assuring that Johnston Laboratories met

the required quality assurance and regulatory criteria, and that

Kellogg ultimately failed in carrying out that responsibility.

The government gave pretrial notice of its intent to

introduce evidence pursuant to Rule 404(b) relating to the

inspection of Johnston Laboratories conducted by PA DEP in

January 1998, the subsequent revocation of Johnston

Laboratories’ certification for testing drinking water, and

Johnston Laboratories’ allegedly deficient laboratory

practices. During a September 5, 2003 hearing, the District

Court held that this evidence was admissible.

With respect to the decertification evidence, the

District Court determined that the evidence was relevant to

the government’s case pursuant to Federal Rules of Evidence

401 and 402, and that, under Rule 403, the potential for unfair

prejudice did not outweigh the probative value of the

evidence. As to relevance, the District Court stated:

The decertification gives the defendant evidence
that something is wrong at Johnston

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 Laboratories. If Mr. [Kellogg] received that
information and takes no affirmative action, a
jury can, but does not have to, infer that the
defendant intended to defraud. The jury can,
although it does not have to, draw this
inference. But if it can draw this inference, the
evidence has relevance. (Appx. 140.)

The District Court also agreed with the government’s

argument that the decertification evidence was admissible to

prove Kellogg’s knowledge and intent. Recognizing and

applying the guidelines for admissibility under Rule 404(b)

set forth by the Supreme Court in Huddleston v. United

States, 485 U.S. 681, 108 S. Ct. 1496 (1988)10, and

10
These guidelines are as follows: first, the other crimes
evidence must have a proper purpose; second, the proffered
evidence must be relevant; third, its probative value must
outweigh its potential for unfair prejudice; and fourth, the
court must charge the jury to consider the other crimes
evidence only for the limited purpose for which it is admitted.
Huddleston, 485 U.S. at 691-92, 108 S. Ct. at 1502; see also
United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988).

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conducting the necessary Rule 403 weighing11, the District

Court reasoned as follows:

Applying these guidelines to the facts of
this case, the first prong, requiring other crimes
evidence to have a proper purpose, here, the
proper purpose is to establish the knowledge
and intent of the defendant.
Two, the proffered evidence must be
relevant. Well, it is relevant...because the
decertification gives the defendant evidence that
something is wrong, and if he took no
affirmative action, the jury could infer from that
that he intended to defraud his customers.
The third guideline is that the probative
value must outweigh its potential for unfair
prejudice. The potential for prejudice is there
only if the jury concludes that because
defendant was negligent and he deceived the
[PA DEP] regarding the decertification for
drinking water testing, therefore, he must have
defrauded in the test results for the non-
drinking, which is the subject of this criminal
action. [T]hat will be inappropriately
concluding, in other words, that because he did
something wrong in the past, he did something

11
“In addition to the Rule 404(b) test, evidence of other
crimes must also be evaluated against the unfair prejudice
standard of Rule 403....In making this determination, the trial
judge must appraise the genuine need for the challenged
evidence and balance that necessity against the risk that the
information will influence the jury to convict on improper
grounds.” Id. at 1019 (citations omitted).

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 wrong presently. That would be unfair
prejudice. And that potential is eliminated by
complying with prong four, which is the giving
of a limiting instruction.
So if we assume in the balancing test that
a limiting instruction will be heard, understood
and followed [by] the jury, then that will
eliminate or diminish the potential for unfair
prejudice to the degree that the relevance will
outweigh any potential for unfair prejudice.

(Appx. 140-46.)

The District Court’s analysis is sound. The Rule

404(b) evidence showed that, in similar matters close in time

to the charged conduct, Kellogg acted deceitfully in the

management of his business. In 1997, after PA DEP found

numerous shortcomings at Johnston Laboratories, Kellogg

represented that the problems were corrected. These

representations were proved false when PA DEP conducted

another inspection in January 1998. The inadequacies at

Johnston Laboratories were so significant that the laboratory

was decertified in February 1998. That Kellogg deceived

state inspectors was probative of his fraudulent intent. The

District Court properly applied the law, and its decision to

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admit the decertification evidence was well within the proper

exercise of its discretion.

B. Evidence of Kellogg’s Misrepresentations to
PA DEP

The government also presented evidence of Johnston

Laboratories’ lack of quality control, and Kellogg’s

misrepresentations to PA DEP, through two former Johnston

Laboratories employees – Ronald Andrae and Stephen

Williams. Kellogg objected to this evidence, stating that it

was only being offered to prove his bad character, and again,

not for any permissible purpose articulated by Rule 404(b).

Andrae testified that certain quality assurance and

quality control procedures must be followed to validate the

data produced in the laboratory, and he also emphasized the

importance of a quality assurance plan and a quality control

plan in a laboratory, in general. Andrae further testified that

Johnston Laboratories had a quality assurance plan in effect in

1998 which was signed and approved by Kellogg. Andrae

then testified about numerous aspects of the Johnston

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Laboratories quality assurance plan, written by Kellogg,

which were supposed to be followed but were not.

Williams testified that Kellogg hired him in 1998 for

another of Kellogg’s companies, Spectra Services, to perform

underground storage tank removals and to serve as a project

manager.12 He further testified that he did not perform any

services for Johnston Laboratories, nor did he have anything

to do with quality assurance or quality control at Johnston

Laboratories. Despite the fact the Williams had no

responsibility for these matters at Johnston Laboratories,

Kellogg asked Williams, just prior to the January 1998 PA

DEP inspection, whether he could put Williams’s name down

as the Quality Assurance/Quality Control Officer on the list of

positions at Johnston Laboratories. Kellogg did not tell

Williams that Kellogg planned to provide the positions list to

12
Spectra Services apparently has some business connection
with Kellogg’s Johnston Laboratories, though the nature of
the connection is not entirely clear from the record. (Appx.
1073-74.)

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PA DEP, nor did Williams give Kellogg permission to so

characterize him to PA DEP. Nevertheless, Kellogg listed

Williams as the Quality Assurance/Quality Control Officer in

information he provided to PA DEP, even though Williams

never performed any services in that capacity.

Kellogg specifically objected to the government’s use

of Williams’s testimony at trial, arguing that the evidence

violated Rule 404(b) because it showed only bad character in

that Kellogg fraudulently listed Williams as Quality

Assurance/Quality Control Officer in connection with a PA

DEP audit and was irrelevant to the charged conduct. The

defense argued that the jury would impermissibly infer that,

because Kellogg made misrepresentations to PA DEP, then he

must have prepared fraudulent reports and made

misrepresentations to Johnston Laboratories’ customers.

After conducting a lengthy colloquy with government and

defense counsel, the District Court overruled the objection,

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first incorporating by reference the reasons articulated during

the September 5, 2003 hearing on this issue, and then stating:

I did separately perform the balancing
test required by 403, concerning today’s
evidence....
Because of the similarities of the
extrinsic evidence to crimes charged there is a
considerable amount of probative value. It is
close in time to the charged offense, the charged
offenses having allegedly taken place between
April 1998 and July 2000 and the extrinsic
evidence, here, having taken place in February
1998. Very shortly before the alleged crimes
here.
Also this isn’t some fraud [or] alleged
fraud or deception by the Defendant in some
totally unrelated matter, at some bank when he
was trying to get [a] mortgage or bilking some
investors who he was trying to bring into some
investment scheme, none of which this
Defendant is charged with doing.
***
There is a very close nexus between the
extrinsic evidence and the crimes charged here.
There is a temporal connection, there is a
subject matter connection, the same type of
fraud or the fraud of listing someone as a
quality control officer who wasn’t the quality
control officer.

(Appx. 1060-63.)

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 Again, the District Court did not abuse its discretion by

admitting this evidence under Rule 404(b). The challenged

evidence demonstrates that Kellogg made material

misrepresentations to PA DEP when he identified Williams as

the Quality Assurance/ Quality Control Officer, though

Williams, in fact, never held that position, and supports the

government’s contention that Kellogg was equally

knowledgeable when, just months later, he began a lengthy

course of misinforming customers that Johnston Laboratories

was performing tests which it in fact did not have the

capability to perform and had not subcontracted to anyone

who could. During the relevant time period, Kellogg made

false statements in order to save his business, which is

relevant to the charged conduct that he prepared and mailed

false laboratory reports and billing statements to his

customers.

In reaching its decision to admit the government’s Rule

404(b) evidence, the District Court conducted a careful

-41-
analysis, more than once. It applied the proper guidelines

under Huddleston, 485 U.S. at 691-92, 108 S. Ct. at 1502, and

the law of this Circuit to the facts before it, and undertook the

appropriate balancing test under Rule 403, see Scarfo, 850

F.2d at 1019, each time Kellogg raised an objection to the

government’s Rule 404(b) evidence. Further, the District

Court provided the jury with explicit instructions defining the

permissible and impermissible uses of the Rule 404(b)

evidence.13 The District Court did not abuse its discretion in

13
The District Court gave the following instruction:
This evidence concerns the defendant’s
actions while president of Johnston
Laborator[ies] approximately three months
before the date first charged in the indictment
when the [PA DEP] decertified the defendant
and his laboratory from conduct[ing]
environmental testing of drinking water.
In that connection, let me remind you
that the defendant, Edward Kellogg, is not on
trial for committing any act that is not alleged in
the indictment.
Accordingly you may not consider this
evidence of the similar act as a substitute for
proof that the defendant committed the crimes
charge[d], nor may you consider this evidence
as proof that the defendant has a criminal

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allowing evidence of fraudulent acts to prove later knowledge

and intent in the charged offenses.

III. Sufficiency of the Evidence

Finally, Kellogg argues that his conviction is not

supported by substantial evidence. We apply “a particularly

deferential standard of review when deciding whether a jury

verdict rests on legally sufficient evidence.” United States v.

Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citations omitted).

We “must view the evidence in the light most favorable to the

government, and will sustain the verdict if ‘any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Id. (quoting United States v.

personality or a bad character.
Specifically, you may not use this
evidence to conclude that because the defendant
committed the other act, he must also have
committed the acts charged in the indictment.
The evidence of the other similar act was
admitted for a much more limited purpose, and
you may consider it only for that limited
purpose.

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Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)) (other citations

omitted).

Kellogg argues that the government presented

insufficient evidence of his specific intent to defraud, as

required by the Federal mail fraud statute, 18 U.S.C. § 1341.

See United States v. Dobson, 419 F.3d 231, 237 (3d Cir.

2005) (setting forth elements required to sustain conviction

under 18 U.S.C. § 1341); see also Copple, 24 F.3d at 544 (3d

Cir. 1994) (“The essential elements of the crime of mail fraud

are 1) a scheme or artifice to defraud; 2) participation by the

defendant with specific intent to defraud; and 3) use of the

mail in furtherance of the scheme.”).

After carefully considering the trial record, and

mindful of the scope of our review, we are not persuaded that

Kellogg has met the “very heavy burden” of demonstrating

his claim of insufficiency of the evidence. Dent, 149 F.3d at

187 (citations omitted); United States v. Gonzalez, 918 F.2d

1129, 1132 (3d Cir. 1990). There is ample evidence in the

-44-
record14 for a reasonable jury to conclude that Kellogg

intended to defraud Johnston Laboratories’ customers by

substituting EPA Method 624 for EPA Method 601/602, by

sending false reports to customers stating that testing based on

EPA Method 601/602 had been performed, and by

14
See, e.g., trial testimony of Randy Haring, the president of
Hydro-Analysis, who stated that he recalled a telephone
conversation with Kellogg in which he told him that Hydro-
Analysis could not perform EPA Method 601/602, and
Kellogg agreed to have testing done using EPA Method 624
(Appx. 1650-51); trial testimony of Akhter Mehmood, a
chemist who oversaw Hydro-Analysis’ day-to-day operations,
stating that he had a May 11, 1998 telephone conversation
with Kellogg about a request for Hydro-Analysis to perform
EPA Method 601/602 testing, and that he personally told
Kellogg that Hydro-Analysis did not have the capability to
perform this method, and that Kellogg gave him the
authorization to do EPA Method 624 instead of 601/602
(Appx. 1245-48); trial testimony of Ronald Andrae, a chemist
employed by Johnston Laboratories, stating that in 1998 he
became aware that Hydro-Analysis was reporting testing by a
method other than EPA Method 601/602, but that Johnston
Laboratories’ reports stated that EPA Method 601/602 was
being used (Appx. 537); trial testimony of Tracy Buzalka, a
microbiologist employed by Johnston Laboratories, stating
that she noticed that Hydro-Analysis reported using EPA
Method 624, but that Johnston Laboratories reported out EPA
Method 601/602, and that she told Kellogg about the
differences in the reports [Appx. 431-32].

-45-
subsequently billing customers for the EPA Method 601/602

tests without actually having performed them. Because there

is evidence to support each of the elements of the charged

offenses, Kellogg’s assertions to the contrary are unavailing.

CONCLUSION

For the reasons set forth, we will affirm the judgment

of the District Court.

ROTH, Circuit Judge, CONCURRING:

I am pleased to join the majority in all but Section I.B

of the opinion. The majority acknowledges that guilt-

assuming hypotheticals may not properly be asked of opinion

witnesses in every case. The majority holds that such a

question was permissible in this case, however, based on a

perceived distinction between reputation and opinion

-46-
character witnesses. The majority concludes that the question

asked of Pennington (who offered both opinion and reputation

testimony) was relevant and its hypothetical nature was clear,

thereby assuaging any concern with respect to the

presumption of innocence. I respectfully disagree. However,

because the error in permitting the questioning was harmless,

I concur in the result.

“‘The principle that there is a presumption of

innocence in favor of the accused is the undoubted law,

axiomatic and elementary, and its enforcement lies at the

foundation of the administration of our criminal law.’”

Taylor v. Kentucky, 436 U.S. 478, 483 (1978) (quoting Coffin

v. United States, 156 U.S. 432 (1895)). Because of the

potential of guilt-assuming hypotheticals to impair this

presumption, the majority of circuits have held that they are

not permissible, whether asked of reputation or opinion

witnesses. The distinction between reputation and opinion

-47-
testimony may relate to the probative value of a guilt-

assuming hypothetical, but any such distinction does not

affect how such questions impact the presumption of

innocence. See United States v. Oshatz, 912 F.2d 534, 539

(2d Cir. 1990).

Contrary to the government’s argument, the challenged

cross-examination of Pennington posed a guilt-assuming

hypothetical, even though the defendant’s name was not

mentioned. This hypothetical was directed to the crux of

Kellogg’s defense. Kellogg maintained that there was

insufficient evidence that he had the intent to defraud required

to convict under the mail fraud statute. In his defense,

Kellogg relied in part on witness testimony to the effect that,

while the Johnston Laboratories computer system for

assigning method numbers to repeat customers was difficult

to change, Johnston would never have intentionally reported

the wrong methodology, as well as that the EPA Method 624

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used by Hydro-Analysis was sophisticated and tested for

essentially the same contaminants as EPA Method 601/602,

the method that Johnston Laboratories reported to customers.

The question posed to Pennington referred, in contrast,

to “a person who knows that a laboratory used one particular

analytical method, but then . . . reports out a completely

different analytical method on final reports of analysis to its

customers . . ..” In my view, this questioning was improper

and should not have been permitted. It is not clear to me, as it

is to the majority, that this guilt-assuming hypothetical was

sufficiently hypothetical to be permissible.

Substantial other evidence supported a finding of guilt,

however, such that the error in allowing the questioning of

Pennington was harmless. As the majority explains in note

14, for example, multiple witnesses testified that Kellogg

agreed to have Hydro-Analysis test using EPA Method 624,

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and Johnston Laboratories employees testified to having

conversations with Kellogg about the discrepancies in the

reports sent to customers. In addition, numerous Johnston

customers attested that they had received reports and invoices

from Johnston stating that Method 601/602 had been used.

Because I find that substantial other evidence renders the

error in permitting the guilt-assuming hypothetical harmless, I

concur in the result.

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