United States v. David Smith

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-4321

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DAVID WILLIAM SMITH,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, District Judge. (1:18-cr-00115-MR-WCM-1)

Submitted: May 6, 2020 Decided: June 16, 2020

Before WILKINSON and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Floyd
joined. Senior Judge Traxler wrote an opinion concurring and concurring in the result in
part.

Howard W. Anderson III, LAW OFFICE OF HOWARD W. ANDERSON III, LLC,
Pendleton, South Carolina, for Appellant. R. Andrew Murray, United States Attorney,
Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
WILKINSON, Circuit Judge:

Following a two-day trial, a jury in the Western District of North Carolina found

appellant David William Smith guilty of possession with intent to distribute more than 50

grams of methamphetamine, along with simple possession of a smaller quantity. On

appeal, Smith advances several claims that he says warrant a retrial. Only one has merit:

We agree with Smith that the district court erred in permitting the government to deviate

from the order of closing arguments prescribed in Rule 29.1 of the Federal Rules of

Criminal Procedure. The court’s decision to allow the government to waive its initial

closing argument—yet retain the opportunity to rebut Smith’s—violates the letter and spirit

of that Rule, inasmuch as it impairs a defendant’s ability to rebut the government’s

arguments in the prescribed manner. Nevertheless, we hold that this error did not prejudice

Smith in light of the overwhelming evidence supporting the jury’s guilty verdict. With

respect to the other issues raised, we find no error, and accordingly affirm the judgment of

the district court.

I.

A.

On August 21, 2017, Angela Johnson called the Swain County Sheriff’s Department

to report “yelling and screaming” coming from a trailer on her property. J.A. 190. While

she waited for the police to arrive, Johnson stood on her front porch. At some point, the

shouting stopped and Johnson saw appellant David Smith exit the trailer and walk toward

a Chevrolet Tahoe parked in the driveway, where a small crowd of people had gathered.

Johnson looked on as Smith placed a black purse under the Tahoe’s front bumper and

2
retrieved a clear box with “white powder” from underneath the vehicle’s rear. Id. at 191-

92. Before Smith put the box back, he hollered, “Does anybody else out here want any?”

Id. at 193.

Patrol Sergeant Doug Woodard arrived on the scene soon after. He spoke to Smith,

who was accompanied by his friend Jessica McCoy. Smith identified the Tahoe as his and

gave Woodard permission to search it. During his search, Woodard located the black purse

and clear box, which were magnetically attached to the Tahoe’s underbody. The purse

contained more than $2,000 in cash, and the box held roughly 11 grams of

methamphetamine. Woodard also found electronic scales and a few Ziploc “baggies” in

the car. J.A. 215. He then arrested Smith.

A few weeks later, Woodard once again crossed paths with Smith, who was out on

probation. On September 4, while in his patrol car, Woodard saw a white minivan with no

license plate tag drive past him. He immediately activated his blue lights and pursued the

vehicle, which “just wasn’t pulling over.” J.A. 230-31. Other officers came to assist.

When the car finally stopped, they began to approach it on foot. As they did so, the officers

saw Smith behind the wheel and McCoy in the passenger’s seat. After receiving Smith’s

consent, they searched the vehicle and found a small amount of a “crystal-like substance”

in the driver’s side area as well as a red lock box underneath the passenger’s seat. Id. at

234. They later obtained a warrant to search the box, and discovered that it contained

approximately 51 grams of methamphetamine and a “large number” of unused Ziploc

baggies. Id. at 276. The officers also recovered $453 in cash. Id. at 288-89.

3
 On September 18, 2018, when Jefferson B. Sessions served as Attorney General, a

grand jury in the Western District of North Carolina returned a two-count indictment

against Smith based on the events in August (Count I) and September (Count II). Both

counts charged Smith with possessing methamphetamine with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). But they alleged different quantities of

methamphetamine—a “detectable” amount with respect to the first count (the trailer park

incident) and more than 50 grams as to the second (the pullover). J.A. 9. Smith was

arrested the following day.

About two months later, Sessions resigned as the Attorney General and the President

designated Matthew Whitaker the Acting Attorney General. He did so pursuant to the

Federal Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d, which authorizes the President

to make temporary appointments to positions requiring Senate confirmation, id.,

§ 3345(a)(3). As explained further below, Smith soon moved to dismiss his indictment on

the ground that even though Whitaker’s designation was statutorily valid, the FVRA was

in contravention of the Appointments Clause, U.S. Const. Art. II, § 2, cl. 2. The district

court denied Smith’s motion. Specifically, it reasoned that the FVRA was not

unconstitutional, and also that Smith had failed to show any prejudicial impact of

Whitaker’s tenure as Acting Attorney General on Smith’s conviction in the Western

District. J.A. 89.

B.

Smith’s case proceeded to trial in January 2019. The jury heard from several

government witnesses, including Angela Johnson, Sergeant Woodard, and Jessica McCoy.

4
McCoy, who identified herself as a methamphetamine addict, confirmed that she had

accompanied Smith during both of the events in question. She said that she and Smith

drove to Johnson’s property in August because Smith needed to “pick up some money from

somebody.” J.A. 292. As for the September incident, McCoy recalled that Smith had

purchased the lock box and minivan the day before Sergeant Woodard pulled them over.

After showing McCoy the contents of the box, the government asked her to estimate how

long the quantity of drugs inside of it would last her. She replied that the box had enough

“crystal meth” to supply her “forever”—a “good four months, five.” Id. at 311-12.

Most relevant to this appeal, the government also offered testimony from Officer

Brian Leopard, who had examined the drugs, baggies, and scales seized from Smith’s

vehicles. Leopard—a Sheriff’s Deputy and task force officer with the United States Drug

Enforcement Administration—told the jury that he had participated in more than 1,500

drug-related investigations over the course of 26 years in law enforcement. Over Smith’s

objection, the district court permitted Leopard to draw upon this experience to opine on the

use of baggies and scales in drug-related conduct. In denying Smith’s objection to

Leopard’s appearance as a lay witness, the court noted that a law enforcement officer

ordinarily need not be qualified as an “expert” to talk about what he has learned from his

“[ac]cumulated experience.” J.A. 258.

With this go-ahead, Leopard testified that a connection exists “between scales and

controlled substances” and “between drugs and baggies of the shape and size” of those that

had been found with Smith. J.A. 220-21, 269. Leopard went on to explain that if drug

customers purchased “a gram, or a couple of grams” of drugs, the “size of bag” recovered

5
in this case “is what we would generally see it in.” Id. at 270. As for the scales, he

remarked that “if you’re going to be buying you want to make sure that you’re getting what

you paid for.” Id. at 271. Finally, Leopard said a few words about typical user amounts

of methamphetamine. He explained that new users do not need “as much to get that

high”—maybe “a tenth of a gram”—whereas longtime users have difficulty “get[ting] that

original high” and use “more and more” in an attempt to do so. Id. at 272.

During cross-examination, Smith asked Leopard if part of the police work that

informed his testimony included suspect interrogations and debriefings. Leopard answered

yes. J.A. 283. Smith then moved to strike all of Leopard’s prior testimony on the ground

that it impermissibly contained testimonial hearsay in violation of the Sixth Amendment’s

Confrontation Clause. Here too, the court overruled the objection. In so doing, it noted

that Smith had not shown that Leopard was simply parroting the disputed statements or

that those statements were “absolutely central” to the opinions he provided on direct

examination based on his accumulated personal experience. See id. at 284-85.

After the prosecution rested its case, Smith did not call any witnesses on his behalf.

The day before closing arguments, the government indicated that it wished to make only

one closing statement rebutting Smith’s. Smith vigorously objected to this proposal,

pointing out that the Federal Rules of Criminal Procedure contemplate an established order

where the government delivers an initial closing as well as a rebuttal responding to the

defendant’s closing. See J.A. 359. Accordingly, Smith requested the court to rule that “if

the government waives opening then it also waives its right to have a rebuttal.” Id. at 357-

58. The court, however, rejected Smith’s request, reasoning in part that denying the

6
government its final closing would be inappropriate in light of the fact that it carries the

burden of proof at trial. Id. at 355-56, 358.

During his closing, Smith conceded that he possessed methamphetamine on both

August 21 and September 4, but he denied any intent to distribute it. J.A. 367, 374. Among

other things, Smith insisted that there is nothing unusual about “buy[ing] in bulk as a drug

user” because taking multiple trips to buy drugs is “dangerous” and “if you get a volume

discount, great.” Id. at 371-72. For its part, the government emphasized that police officers

recovered drug distribution tools on both occasions, but they did not find any instruments

of personal drug use such as pipes or rolling papers. With regard to the September episode,

the government also underscored that Smith had with him “dozens of bags” and, as McCoy

noted, enough methamphetamine to supply an experienced user for months. Id. at 378-

80.

The jury returned a partial acquittal on January 9, 2019. On Count I, Smith was

convicted only of the lesser-included offense, simple possession. As for Count II, the jury

found him guilty as charged. A few months later, the district court sentenced Smith to 36

and 77 months in prison for Counts I and II, respectively. By this time, Whitaker was no

longer the Acting Attorney General and William P. Barr was serving as Attorney General,

having been nominated by the President and confirmed with the advice and consent of the

Senate.

On appeal, Smith argues that a retrial is required for three reasons. First, he argues

that Matthew Whitaker’s designation as Acting Attorney General was unconstitutional and

that his trial during Whitaker’s tenure was accordingly defective. Second, Smith avers that

7
Leopard’s testimony about bags, scales, and typical user amounts of methamphetamine did

not qualify as lay opinion and that its introduction also violated the Confrontation Clause.

And third, Smith maintains that the government should have lost its opportunity to deliver

a rebuttal closing argument when it chose not to make an initial one.

II.

We begin with Smith’s constitutional challenge, which we review de novo. United

States v. Bollinger, 798 F.3d 201, 207 (4th Cir. 2015). All parties agree, as they must, that

Matthew Whitaker’s designation as Acting Attorney General was authorized by the Federal

Vacancies Reform Act. 5 U.S.C. § 3345(a)(3). 1 But Smith claims that even if the President

had the statutory power to name Whitaker to that post, the FVRA was in violation of the

Appointments Clause. And if Whitaker’s tenure was unconstitutional, Smith tells us, then

everything carried out by the Justice Department under his watch (including Smith’s

1
Smith concedes that if the FVRA applies, then there is no statutory problem with
Whitaker’s designation. But for the first time, Smith now suggests that the FVRA may not
have been available here because 28 U.S.C. § 508 (AG Act) should be construed as the
exclusive succession statute for the office of the Attorney General. And under that Act,
Smith continues, the Deputy Attorney General (not Whitaker) was supposed to have taken
over. This is wrong. As other courts have held, agency-specific succession statutes (like
the AG Act) ordinarily supply an alternative to the FVRA, but not a mutually exclusive
one, absent clear text to the contrary. See, e.g., Hooks v. Kitsap Tenant Support Servs.,
816 F.3d 550, 555-56 (9th Cir. 2016); see also S. Rep. No. 105-250, at 17 (1998) (stating
the FVRA “would continue to provide an alternative procedure [to agency-specific
statutes] for temporarily occupying” a vacant office). After all, when Congress wants the
FVRA not to apply, it says so. See, e.g., 5 U.S.C. § 3349c; 6 U.S.C. § 113(g). But the AG
Act offers no hint that Congress tried to displace the FVRA; in fact, every indication points
the other way. Guedes v. Bureau of Alchohol, Tobacco, Firearms, and Explosives, 356 F.
Supp. 3d 109, 138-44 (D.D.C. 2019) (analyzing the text and structure of the two statutes).

8
prosecution for dealing methamphetamine in North Carolina’s Western District) was

inescapably tainted. Smith thus says he is owed a retrial.

We disagree. The President’s designation of Whitaker as the Acting Attorney

General was constitutional—a conclusion that is plainly compelled by both longstanding

Supreme Court precedent as well as centuries of unbroken historical practice. To boot,

even if Smith’s constitutional argument were right, he still would not be entitled to the

relief he seeks, for Smith has failed to show in any discernible fashion how Whitaker’s

designation affected the validity of Smith’s proceeding or prejudiced him in any way. In

short, we affirm the district court’s decision on this score and, in so doing, join every court

that has assessed the constitutional claim Smith raises here. See United States v. Castillo,

772 Fed. App’x 11, 13 n. 5 (3d Cir. 2019) (collecting cases).

Article II’s Appointments Clause divides all constitutional officers into two classes:

“inferior officers” and noninferior officers (who are referred to as “principal officers”).

United States v. Germaine, 99 U.S. (9 Otto) 508, 511 (1878). 2 Principal officers must be

appointed by the President with the advice and consent of the Senate. Edmond v. United

States, 520 U.S. 651, 660 (1997). Inferior officers may be appointed in the same manner,

2
The full text of the Appointments Clause provides that the President

“shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.” U.S. Const. Art. II, § 2, cl. 2.

9
but doing so is not constitutionally required. Id. Instead, should it so choose, Congress

may authorize the President alone to appoint inferior officers without the advice and

consent of the Senate. See U.S. Const. Art. II, § 2, cl. 2.

The Attorney General is undoubtedly a principal officer who must be appointed by

the President and confirmed by the Senate. See Edmond, 520 U.S. at 662-63. Smith’s

claim here turns on whether an Acting Attorney General holds the same constitutional

status. If an Acting Attorney General is a principal officer, as Smith insists he is, then

Whitaker’s designation would have been unlawful, and the FVRA would be

unconstitutional as-applied because it would have improperly provided for a non-Senate-

confirmed person to serve as a principal officer. But if an Acting Attorney General is an

inferior officer, then Whitaker’s designation would be free of any constitutional infirmity

since Congress may “by Law vest the Appointment of such inferior officers” “in the

President alone.” U.S. Const. Art. II, § 2, cl. 2. We hold that Whitaker’s designation

complied with the Appointments Clause. Someone who temporarily performs the duties

of a principal officer is an inferior officer for constitutional purposes, and accordingly may

occupy that post without having been confirmed with the advice and consent of the Senate.

The Supreme Court’s decision in United States v. Eaton, 169 U.S. 331 (1898) settles

this issue. There, Sempronius Boyd, then-Consul to Siam (and a Senate-confirmed

principal officer), had fallen ill and Lewis Eaton, a general vice consul (and a non-Senate-

confirmed inferior officer), was named to temporarily replace him as Consul. For reasons

not relevant here, Eaton later found himself in litigation with Boyd’s estate over

10
Eaton’s salary (and what might have gone to Boyd’s widow)—a question that necessarily

involved whether Eaton had been constitutionally designated the acting Consul to Siam.

The Court held that Eaton’s temporary service as Consul was consistent with the

Constitution, even though he was not appointed to that post by the President with the advice

and consent of the Senate. See Eaton, 169 U.S. at 343-44. Specifically, the Eaton Court

held that when a “subordinate officer is charged with the performance of the duty of the

superior for a limited time and under special and temporary conditions, he is not thereby

transformed into the superior and permanent official.” Id. at 343. Focusing on both the

Constitution’s structure as well as decades of executive branch practice, the Eaton Court

reasoned that holding otherwise “would render void any and every delegation of power to

an inferior to perform under any circumstances or exigency the duty of a superior officer,

and the discharge of administrative duties would be seriously hindered.” Id. at 343-44.

So much so here. The FVRA sets specific time limitations and other conditions on

the tenure of acting department heads. See 5 U.S.C. § 3346; see also NLRB v. SW General,

Inc., 137 S. Ct. 929, 935-37 (2017). In other words, an Acting Attorney General under the

FVRA is “only charged with the performance of the duty of the superior for a limited time

and under special and temporary conditions,” Eaton, 169 U.S. at 343, and is thus an inferior

officer under Eaton. 3 Smith urges that we should essentially treat Eaton as a relic—as a

3
To be sure, it is possible that a statute may authorize an acting tenure so lengthy
that it exceeds the “special and temporary conditions” contemplated by Eaton, and amounts
instead to a circumvention of the Appointments Clause. SW General, 137 S. Ct. at 946 n.1
(Thomas, J., concurring). But that is not this case, where Whitaker held his post for only
a few months, well within the FVRA’s initial 210-day clock. See NLRB v. Noel Canning,

11
case, in his words, that was decided “before the airplane,” Appellant’s Op. Br. at 22—and

nonetheless hold that the FVRA is unconstitutional insofar as it permits non-Senate-

confirmed persons to serve as acting principal officers. Of course, we can do no such

thing, for what Smith is really asking us to do is not only hold unconstitutional an Act of

Congress, but to overrule Eaton’s binding holding.

Eaton stands for the basic principle that acting heads of departments are not

principal officers because of the temporary nature of the office. The Supreme Court has

consistently reaffirmed this rule. See Edmond, 520 U.S. at 661; Morrison v. Olson, 487

U.S. 654, 672-73 (1988) (holding the independent counsel was an inferior officer because,

in large part, his post was only “temporary”) (citing Eaton, 169 U.S. at 343). Lower courts,

naturally, have as well. See, e.g., United States v. Hilario, 218 F.3d 19, 29 (1st Cir. 2000)

(“Of course, an inferior officer can stand in for a principal officer.”).

None of this should be surprising because Eaton is congruous with centuries of

unbroken historical practice. The Supreme Court has often stressed that when it comes to

cases involving structural constitutional provisions like the Appointments Clause, history

matters. See Noel Canning, 573 U.S. at 524; The Pocket Veto Case, 279 U.S. 655, 688

(1929). And the history here points in one direction. “Since President Washington’s first

term, Congress has given the President limited authority to appoint acting officials to

temporarily perform the functions of a vacant PAS office [i.e., an office requiring

573 U.S. 513, 600 (2014) (Scalia, J., concurring in the judgment); see also E. Garrett West,
Congressional Power Over Office Creation, 128 Yale L.J. 166, 217-18 (2018).

12
Presidential appointment and Senate confirmation] without first obtaining Senate

approval.” SW General, 137 S. Ct. at 935. Taken as true, Smith’s position on the FVRA

would ultimately mean that these congressional authorizations harbored repeated

constitutional defects and that Congress has gotten the Appointments Clause quite wrong

for centuries. That is ordinarily a pretty bad sign. See United States v. Curtiss-Wright

Export Corp., 299 U.S. 304, 327-28 (1936) (recognizing a “legislative practice” that is

“marked by the movement of a steady stream for a century and a half of time” often

constitutes “an unassailable ground for the constitutionality of the practice”). Especially

so here, where Smith’s position would find him at immediate odds with the Constitution’s

drafters. For the first general vacancy statute, passed by the Second Congress, “authorized

the appointment of ‘any person or persons’ to fill vacancies in the Departments of State,

Treasury, and War.” SW General, 137 S. Ct. at 935 (quoting Act of May 8, 1792, ch. 37

§ 8, 1 Stat. 281) (emphasis added). Put plainly, that Act—just like the FVRA—permitted

non-Senate-confirmed persons to serve temporarily as acting principal officers.

At heart, Smith is asking for a revolution in Appointments Clause jurisprudence.

Indeed, for his position to succeed, clear Supreme Court precedent, scores of federal laws,

and hundreds of past executive branch designations would all have to fall. In light of the

above, we find the FVRA a permissible exercise of congressional authority under the sound

rule laid down by Eaton and in turn reject Smith’s constitutional claim.

Finally, we are mystified as to exactly what the connection is between the

appointment of which Smith complains and his right to a fair trial. Even if he has it right,

and all three branches of government have had it wrong since the Founding, Smith would

13
still not be entitled to the relief he seeks. At bottom, Smith has cited no authority—nor

could he—for his root-to-branch theory that as long as Whitaker’s tenure as Acting

Attorney General was unlawful, then the integrity of his federal prosecution in the Western

District of North Carolina was necessarily marred. See Castillo, 772 Fed. App’x at 14 n.6

(collecting cases rejecting this position); see also Ryder v. United States, 515 U.S. 177,

182-83 (1995). Rather, Smith must show that Whitaker’s tenure somehow affected his

proceeding and prejudiced him in some way. Yet Smith can do no such thing.

For starters, Smith’s indictment was valid in every respect. First, he was prosecuted

by the United States Attorney for the Western District of North Carolina, who was Senate-

confirmed and who was independently empowered by statute to “prosecute . . . all offenses

against the United States.” 28 U.S.C. § 547(1). Second, nobody contests that federal law

authorized Smith’s prosecution and that the district court had jurisdiction over it. 18 U.S.C.

§ 3231; see also United States v. Plesinski, 912 F.2d 1033, 1038 (9th Cir. 1990). And third,

Smith was charged pursuant to an indictment issued by a properly constituted grand jury.

See Costello v. United States, 350 U.S. 359, 409 (1956) (A facially valid “indictment

returned by a legally constituted and unbiased grand jury . . . is enough to call for trial of

the charge on the merits.”); see also United States v. Williams, 504 U.S. 36, 47-48 (1992).

In light of the above, we cannot dismiss Smith’s indictment, or order a new trial,

without some indicia that Smith was prejudiced by Whitaker’s tenure as the Acting

Attorney General. See Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988).

But Smith cannot make this showing. In fact, he has not provided a single concrete

example of how Whitaker affected or influenced his criminal proceeding in any manner.

14
United States v. Smith, 2018 WL 6834712, at *4 (W.D.N.C. Dec. 28, 2018) (Smith “is

unable to point to any prejudice—real or imagined—that is created by Whitaker’s

designation as Acting Attorney General.”). As such, we affirm the district court here, and

reject Smith’s request for a retrial on this ground.

III.

A.

Smith next claims that the district court improperly admitted Officer Leopard’s

testimony. He contends that Leopard’s remarks about drug quantities and paraphernalia

should not have been admitted as lay opinions under Federal Rule of Evidence 701.

Instead, he tells us, the district court should have examined their admissibility under Rule

702’s rubric for expert testimony. In essence, Smith avers that Leopard’s reliance on his

past experience as a police officer took his testimony outside the realm of lay opinion and

into the territory of an expert. And because Leopard was offering expert testimony, Smith

maintains that the government was required to disclose his testimony to the defense prior

to trial and that the district court should have fashioned appropriate relief to address this

error—such as granting Smith a continuance to obtain a counter-expert.

Under Rule 701, a lay witness may only offer an opinion that is “rationally based

on [his] perception.” Fed. R. Evid. 701(a). By contrast, to offer an opinion “based on

scientific, technical, or other specialized knowledge,” the witness must first be qualified as

an expert under Rule 702. Id. at 701(c). The line between lay and expert testimony “is a

fine one.” United States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010) (quotation omitted).

Under our case law, if a witness’s firsthand observations are “common enough” and require

15
applying only a “limited amount of expertise,” they may fairly come in under Rule 701 as

lay testimony. United States v. Perkins, 470 F.3d 150, 156 (4th Cir. 2006) (quotation

omitted). On the other hand, opinions resulting “from a process of reasoning which can be

mastered only by specialists in the field” must be admitted through Rule 702. United States

v. Howell, 472 F. App’x 245, 246 (4th Cir. 2012) (quoting Fed. R. Evid. 701 advisory

committee notes).

In all events, whether certain testimony falls under which Rule is a classic

evidentiary call for which a federal trial court is afforded a good deal of discretion. United

States v. Farrell, 921 F.3d 116, 145 (4th Cir. 2019). To that end, the district court’s ruling

here must stand unless it has acted “arbitrarily or irrationally.” Id.

A review of Leopard’s testimony makes clear that it met Rule 701’s core

requirements. For one, Leopard’s testimony was essentially observational and “based on

personal knowledge.” Perkins, 470 F.3d at 155-56. Indeed, it is well-settled that

“experience-derived police testimony concerning criminals’ typical modi operandi during

a drug transaction” may qualify as lay opinion under Rule 701. United States v. Page, 521

F.3d 101, 105 (1st Cir. 2008) (allowing agent’s testimony that narcotics traffickers usually

have “burly individuals” accompany them during drug deals “to provide protective

countersurveillance against police drug stings”); see also United States v. Williams, 212

F.3d 1305, 1309 (D.C. Cir. 2000) (permissible for officer to testify that it is common for

drug traffickers to carry weapons for protection); United States v. VonWillie, 59 F.3d 922,

929 (9th Cir. 1995) (same); United States v. Hoston, 728 F. App’x 223, 224 (4th Cir. 2018)

(officer could opine that the substance he saw on the floor of the defendant’s residence was

16
methamphetamine).

The testimony in this case is similar in kind. Leopard’s statements, like the

examples we have described, were grounded in his firsthand observations. For instance,

he commented that he had seen dealers use the size and type of bag found with Smith to

distribute “a gram, or a couple of grams” of drugs. J.A. 270. And he noted that it was

common, in his experience, for buyers to weigh the drugs they planned to purchase with a

scale such as was located in Smith’s vehicle. Id. at 270-71. To be sure, Leopard’s remarks

were based on his decades-long law enforcement career. That, however, does not make

them any less observational for purposes of Rule 701. As the district court recognized, we

have repeatedly allowed officers to bring to bear their accumulated experience when

testifying as lay witnesses. Id. at 258. A case in point is that of United States v. Roe, where

we held that an officer in charge of a firearms licensing unit could, “based on his personal

knowledge acquired in that capacity,” testify about what authority permitholders do and do

not have. 606 F.3d 180, 185-86 (4th Cir. 2010); see also Perkins, 470 F.3d at 156-57

(upholding admission of officers’ testimony that the force they saw being used to arrest

someone was reasonable in light of their “particularized experience as police officers”).

In short, Officer Leopard’s testimony was plainly based on his own “perception.”

Fed. R. Evid. 701(a). Moreover, that perception did not turn on the application of any

“specialized knowledge.” Fed. R. Evid. 702(a). Take what Leopard said about the use of

Ziploc bags in narcotics transactions. In the main, he noted that bag size may indicate the

type or weight of the drug being sold. J.A. 270 (“You have larger bags, of course, larger

weights . . . [and] some drugs you don’t need as much so you don’t need as big a bag.”).

17
Consider also his comments on the use of digital scales: “[I]f you’re going to be buying

you want to make sure that you’re getting what you paid for.” Id. at 271. Obviously, such

statements touch on facts within the jury’s reach. Said otherwise, they call more for the

exercise of common sense than expertise.

All told, we cannot say that it was an abuse of discretion to allow Leopard to offer

his lay opinions. To repeat, the district court enjoys wide latitude when determining

whether to admit a witness’s statements under Rule 701 or 702. There is no indication that

the trial court went too far here. On the contrary, Leopard’s remarks bear all the hallmarks

of a permissible lay opinion; not only are they observational in nature, they also result from

a process of reasoning that is less the product of specialized or academic training than the

stuff of everyday life. See Perkins, 470 F.3d at 155-56.

There was thus no error here, and even if there were it would be harmless. A trial

court’s wrongful admission of opinion testimony under Rule 701 is harmless if the same

testimony could have been offered under Rule 702 in the first instance. Perkins, 470 F.3d

at 156-57. Here the government could readily have qualified Leopard as an expert, as

courts routinely admit similar police officer testimony. See, e.g., United States v. Monu,

782 F.2d 1209, 1210-11 (4th Cir. 1986) (upholding admission of agents’ expert opinion

testimony regarding heroin distributor’s use of scales); see also United States v.

Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994) (noting that “expert testimony on the modus

operandi of criminals is commonly admitted, particularly regarding the methods of drug

18
dealers”) (internal quotation marks and quotation omitted). 4

We are confident too that the admission of Leopard’s testimony did not affect the

outcome of Smith’s trial in any way. That is because the independent evidence that Smith

intended to distribute drugs on September 4 was overwhelming. On that date, police

officers recovered approximately 51 grams of methamphetamine—hidden in a lock box—

from an unlicensed van that Smith was driving. The officers also found a “large number”

of unused Ziploc baggies and $453 in cash. J.A. 274-76, 288-89. We think it is doubtful,

in light of this hard evidence, that the jury misjudged the character of Smith’s operations.

Moreover, the testimony at trial provided still more evidence of his intent to distribute.

Tellingly, his friend McCoy (who was the passenger in his van) testified that 51 grams was

enough drugs to supply an experienced user like herself for “a good four months, five.” Id.

at 311-12. And, when asked to ballpark the going price for this quantity, she said

“[p]robably a thousand” dollars. Id. We cannot say, then, that Leopard’s comments had

any cognizable impact on the jury’s verdict.

4
Smith does not dispute that Leopard’s remarks were admissible under Rule 702.
According to him, Leopard’s testimony was problematic regardless because he had no
notice of it prior to trial, and he therefore did not have the opportunity to obtain a counter-
expert. See Fed. R. Crim. Pro. 16(a)(1)(G) (requiring government to provide defense with
“written summary” of expert testimony during discovery). That argument, however, does
not move the needle in Smith’s favor, because he does not even hint at anything a counter-
expert could have said that would have made a difference. See United States v. Smith, 701
F.3d 1002, 1008 (4th Cir. 2012).

19
 B.

Having rejected Smith’s first challenge to Leopard’s testimony, we now consider

his Confrontation Clause claim, which we review de novo. United States v. Mouzone, 687

F.3d 207, 213 (4th Cir. 2012). Smith avers that Leopard’s remarks were based on

statements that Leopard had heard during police interrogations or official debriefings—

statements that are considered “testimonial” hearsay under the Confrontation Clause.

Appellant’s Op. Br. at 43 (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). And

because Smith did not have the opportunity to cross-examine the declarants of those

statements, he argues that their admission violated his Sixth Amendment right “to be

confronted with the witnesses against him.” U.S. Const. amend. VI. Taking a fly in the

ointment approach, Smith then maintains that all of Leopard’s testimony was therefore

tainted because it was partially premised on inadmissible hearsay.

We disagree. Leopard’s testimony plainly did not relay testimonial hearsay to the

jury. As the district court noted, Leopard spoke on the basis of his learned experience in

the aggregate. Suspect interrogations and debriefings, none of which even had anything to

do with Smith’s case, were just “one small slice” of that experience. J.A. 286. Indeed,

Leopard’s 26 years as a law enforcement officer also included “investigations,

prosecutions, hard evidence, observations, and so on.” Id. at 285. Moreover, at trial,

Leopard did not describe a single statement that he had heard during earlier investigations,

but rather drew on what he had generally learned over the course of his entire law

enforcement career. See id. at 268-72. Put otherwise, Leopard was not merely “parroting”

outside statements or repeating what he had overheard in some interrogation room, as

20
opposed to offering insight gleaned from decades of policework—and Smith has given us

absolutely no reason to think otherwise. Accordingly, like the district court, we find

Smith’s Confrontation Clause claim to be without merit.

IV.

Finally, Smith argues that he is entitled to a retrial because the government failed to

make an initial closing argument and instead chose to deliver only a rebuttal argument

following Smith’s closing. Specifically, he claims that under Rule 29.1 of the Federal

Rules of Criminal Procedure, the district court should have ruled that the government

waived its rebuttal argument when it chose not to make an initial closing.

In Smith’s view, this conclusion follows from Rule 29.1’s text and purpose. To

begin with, the Rule sets out a defined order for closing arguments: “(a) the government

argues; (b) the defense argues; and (c) the government rebuts.” Fed. R. Crim. P. 29.1. The

thrust of this text, Smith says, is to require the government to go first. That is because the

“fair and effective administration of justice is best served if the defendant knows the

arguments actually made by the prosecution in behalf of conviction before the defendant

is faced with the decision whether to reply and what to reply.” Fed. R. Crim. P. 29.1

advisory committee notes. Although the Rule does not spell out what happens if the

government does not deliver an initial closing, Smith argues that a waiver of its rebuttal is

the natural consequence. As support, he notes that the House Judiciary Committee, in

adopting the proposed Rule, took just that view. See id. judiciary committee notes.

Of course, the district court is generally “afforded broad discretion in controlling

closing arguments and is only to be reversed when there is a clear abuse of its discretion.”

21
United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010) (quotation omitted). But such

discretion, while broad, is not limitless. Rule 29.1 is clear as to how closing arguments

shall proceed, and it thus cabins the district court’s latitude in a discrete but important way.

See United States v. Cardascia, 951 F.2d 474, 485 (2d Cir. 1991) (“Aside from controlling

the order of appearances in the closing arguments, inasmuch as the prosecution must go

first, Rule 29.1 does not limit the discretion of the trial judge whose obligation it is to

ensure a fair and orderly procedure in the closing arguments to the jury.”).

Adhering to the prescribed sequence of closing arguments is not just a matter of

good housekeeping. Doing so provides each side in a criminal case a meaningful

opportunity to rebut the other, much as with the orderly progression of arguments in

appellate briefing. To borrow from the Supreme Court, “[t]he very premise of our

adversary system of criminal justice is that partisan advocacy on both sides of a case will

best promote the ultimate objective that the guilty be convicted and the innocent go free.”

Herring v. New York, 422 U.S. 853, 862 (1975). Moreover, “no aspect of such advocacy

could be more important than” what is at issue here—“the opportunity finally to marshal

the evidence for each side before submission of the case to judgment.” Id.

Rule 29.1 tracks these core principles. As Smith points out, its purpose is to preserve

a defendant’s final opportunity to respond to the prosecution’s case in an informed manner.

See United States v. Fields, 429 F. App’x 343, 345 (4th Cir. 2011) (citing Fed. R. Crim. P.

29.1 advisory committee notes). What the government did in this case, however,

undermined that vital function. To permit the prosecution to waive its initial closing, yet

retain the opportunity to rebut, upsets the fundamental structuring of the Rule and leaves

22
defendants like Smith with no opportunity (in the absence of a sur-rebuttal) to meaningfully

respond to what the government has said. Rather than authorize that perverse result, we

endorse the House Judiciary Committee’s view that “the prosecutor, when he waives his

initial closing argument,” ordinarily “also waives his rebuttal.” See Fed. R. Crim. P. 29.1

judiciary committee notes. As such, we hold that it was an abuse of the district court’s

discretion to permit the government’s altered order to go forward over Smith’s vigorous

objection.

This conclusion is bolstered by the case law of other circuits. Time and again, courts

have frowned upon de facto departures from Rule 29.1’s order of arguments that unfairly

frustrate a defendant’s ability to confront the prosecution’s case. See, e.g., United States

v. Yakobowicz, 427 F.3d 144, 152-53 (2d Cir. 2005) (holding that the prosecution’s use of

argumentative interim summations after each of its witnesses testified violated Rule 29.1

because it “enable[d] the prosecution to argue repeatedly the merits of its theory of the

case” before closing arguments); United States v. Taylor, 728 F.2d 930, 937 (7th Cir. 1984)

(recognizing that “a prosecutor cannot use rebuttal to put forth new arguments, but is

restricted to responding to the points made by the defense counsel in closing argument”);

see also United States v. Wood, 175 F.3d 1018 (4th Cir. 1999) (district court abused its

discretion by permitting the government to “simply end-run Rule 29.1” by presenting a key

argument for the first time in rebuttal).

The same holds here. Intentional or not, when the government waives its initial

argument, it has the effect of “sandbag[ging]” the defendant by setting him up to avoid a

subject in his closing argument, only to learn that it is too late to reply to the prosecution’s

23
side of the story. See Waters v. State, 974 A.2d 858 (Del. 2009) (applying this logic to

hold that, under a state rule of criminal procedure patterned after federal Rule 29.1, the

government’s waiver of its initial closing constituted a waiver of its rebuttal). Even the

government—which is no stranger to pointing out the ills of sandbagging—seems to

recognize the error in the approach it took here. Indeed, it concedes that the “better practice

is to adhere to the order of arguments that Rule 29.1 specifies,” Appellee’s Br. at 40, and

has represented that prosecutors in the Western District of North Carolina have since been

instructed to follow the Rule’s order of operations, id. We think this corrective course is

well-advised.

Often it is best never to say never, so we need not hold that deviation from the Rule

29.1 sequence is never justified. In some circumstances, defense counsel may judge it in

the best interest of his or her client for the government to make only one closing argument,

albeit the last one. Therefore, if the defendant consents to the government’s waiver of its

initial closing, it follows that the defendant waives his right to later object to or appeal the

government’s departure from Rule 29.1’s order. However, where, as here, the defendant

does object to the government’s failure to open, we again make clear that the government

ordinarily also waives its rebuttal. In that case, a defendant’s objection highlights the evil

that may ensue from the altered order of closing arguments—the possibility that the

government may use its waiver of an initial closing to shield its argument from rebuttal

while exposing the defendant’s to attack.

Smith is not entitled, however, to a retrial unless the government’s failure to deliver

an initial summation actually prejudiced him. See United States v. Ollivierre, 378 F.3d

24
412, 417 (4th Cir. 2004), vacated on other grounds by Ollivierre v. United States, 543 U.S.

1112 (2005). He tries to make this showing by arguing that he was unable to respond to

the prosecutor’s argument that he intended to distribute the drugs found with him, rather

than use them personally, because, as the prosecution put it, police never recovered from

his vehicles any “instruments of [personal] drug use” (i.e., pipes or rolling papers). See

J.A. 377-78. Had the government made this point initially, Smith suggests, he “could have

argued” that he was “transporting the drugs home for him to use, where the necessary

equipment” for his personal use “may have been.” Appellant’s Op. Br. at 35. 5

That is not enough to show prejudice. As an initial matter, Smith never asked the

district court for the opportunity to make a sur-rebuttal. He could, of course, have done so;

defendants routinely request supplemental rebuttals to respond to new arguments made by

the prosecution. See United States v. Jackson, 852 F.3d 764, 776 (8th Cir. 2017). Given

that practice, Smith’s grievance seems to come rather late in the game. Finally, as we have

already noted, the evidence of Smith’s intent to distribute methamphetamine on September

4 was overwhelming. To recapitulate: Police officers recovered months-worth of

5
Smith also argues that it was impermissible for the prosecution to comment during
its closing about his silence when Sergeant Woodard confronted him with the drug
paraphernalia found in his truck on August 21. See J.A. 382 (“Did he stand up and scream
and say that’s not mine . . . No.”). As support, he cites Doyle v. Ohio, which held that it
violates due process “to call attention to [a defendant’s] silence at the time of arrest.”
Appellant’s Op. Br. at 36 (quoting 426 U.S. 610, 617-19 (1976)). But that rule is inapposite
here, for Smith’s silence occurred prior to his arrest and receipt of Miranda warnings. See
Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (“[T]he Constitution does not prohibit
the use for impeachment purposes of a defendant’s silence prior to arrest or after arrest if
no Miranda warnings are given.”) (citations omitted).

25
methamphetamine from Smith’s car along with hundreds of dollars in cash and numerous

baggies that are ordinarily used for distributing drugs. It seems plain, then, that the jury

would have returned the same verdict irrespective of the Rule 29.1 error.

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

26
TRAXLER, Senior Judge, concurring and concurring in the result in part:

I concur in Parts I-III of Judge Wilkinson’s opinion. And while I concur in the result

of Part IV, I write separately to set out my views on the closing-argument issue.

Rule 29.1 sets out the order for closing arguments in criminal cases: “(a) the

government argues; (b) the defense argues; and (c) the government rebuts.” Fed. R. Crim.

P. 29.1. This is obviously the normal and preferred sequence, but courts have recognized

that some deviations are permissible. See, e.g., United States v. Garcia, 94 F.3d 57, 63

(2d Cir. 1996) (noting that the district court has discretion in appropriate cases to permit

the defendant to make a rebuttal closing argument); United States v. Cardascia, 951 F.2d

474, 485 (2d Cir. 1991) (finding no error in the district court’s decision to permit defense

rebuttal). Nonetheless, the government points us to no authority permitting it to waive its

initial argument over the objection of the defendant. 1

In this case, the defendant made a timely objection to the Government’s waiver of

its initial argument. As we have explained, the district court erred by overruling this

objection – if the defendant objects, the government must follow the sequence set out in

Rule 29.1. The question, then, is whether Smith was prejudiced by that error.

When determining whether the error was harmless, context is important. During

the trial the defendant called no witnesses. When defense counsel made his closing

argument, he announced for the first time to the court and to the jury that he was conceding

1
As noted in the majority opinion, there may be circumstances where counsel
believes the defendant’s best interest would be served by the government’s waiver of its
opening argument.

27
guilt of simple possession of methamphetamine and contesting only the more serious

charges of possessions with intent to distribute. The jury ultimately accepted his argument

as to one of the two charges and found Smith guilty of only simple possession on Count I.

On appeal, Smith argues that he was prejudiced by the Government’s waiver of

initial argument because the Government inappropriately commented on his silence when

it argued to the jury that Smith did not deny ownership of the drugs and money Sergeant

Woodard found when he searched Smith’s car after being called to the scene by Angela

Johnson. I see no merit to this argument. First of all, Smith did not object to this argument,

and nothing about the order of closing arguments prevented him from doing so. More

importantly, however, given Smith’s decision not to contest his possession of

methamphetamine, his complete silence at the scene was irrelevant to the issue the jury had

to decide, which was whether Smith intended to distribute the drugs he admittedly

possessed.

Pointing to the Government’s jury argument about the absence of any personal-use

paraphernalia when Smith was arrested, Smith contends that the sequence of closing

arguments permitted the Government to make what amounted to an improper rebuttal

argument. Smith argues that if the Government had proceeded first and argued that the

absence of such paraphernalia showed an intent to distribute, he would have been able to

counter that point by arguing that drug users do not travel with their pipes and other

equipment, but keep them where they use the drugs. Although Smith could perhaps have

mitigated the power of the Government’s argument had the proper sequence been followed,

that does not suffice to establish prejudice and require reversal. The jury agreed with Smith

28
as to Count I, finding him guilty only of possession of the drugs found during the incident

on Angela Johnson’s property. While the jury did find Smith guilty of possession with

intent to distribute on Count II, the jury’s verdict on Count I shows that the improper

argument sequence did not prevent the jury from fully considering Smith’s defense.

Although the district court erred by rejecting Smith’s objection and permitting the

Government to waive its initial closing argument, the particular circumstances of this case

convince me that the error was harmless. I therefore concur in the result of Part IV of the

opinion, and fully concur in the remainder of the opinion.

29