United States v. Abdullah Muhammad

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 11-2385,
11-2437 and 11-2538
_____________

UNITED STATES OF AMERICA

v.

ABDULLAH MUHAMMAD,
Appellant No. 11-2385
_____________

UNITED STATES OF AMERICA

v.

ANTHONY PETERSON,
Appellant Nos. 11-2437 and 11-2538
_____________

Appeals from the United States District Court
for the District of New Jersey
(D.C. Criminal Nos. 2-09-cr-00265-003,
2-09-cr-00265-001 and 2-93-cr-00010-001
District Judge: Honorable Susan D. Wigenton
_____________

Submitted Under Third Circuit LAR 34.1(a)
September 18, 2012

Before: SLOVITER, RENDELL and HARDIMAN, Circuit Judges

(Opinion Filed: January 31, 2013 )
_____________

OPINION OF THE COURT
_____________
RENDELL, Circuit Judge.

In these consolidated appeals, Abdullah Muhammad and Anthony Peterson appeal

the convictions and sentences they received following a jury trial on charges arising out

of a bank robbery and ensuing high-speed chase. They raise numerous claims of error.

For the reasons that follow, we will affirm the District Court’s judgments of conviction

and sentence as to Muhammad and Peterson.

I.

On March 12, 2009, it was nearing closing time at a Bank of America branch in

Somerset, New Jersey, when four men drove a stolen Jeep Cherokee into the bank’s

parking lot. As one man waited in the car with the engine running, the other three

entered the bank wearing gloves and masks of different United States presidents and

carrying guns. Two of these masked men were identified at trial as Muhammad and

Peterson. The men took the security guard’s gun. They then ordered the tellers and the

bank’s sole patron to get down on the floor. One of the men then pointed his gun at the

tellers and demanded cash; he then emptied the tellers’ cash drawers into a bag.

A second man put a gun to a bank employee’s head and ordered him to open the

vault. The vault opened and the men removed cash. The men then ordered everyone in

the bank to stay on the ground, and left the bank with, among other items, the security

guard’s gun and over $93,000 in cash. The cash included “bait bills” which contained

two hidden GPS devices.

Several bystanders saw the robbers leave the bank and one witness called 911,

reporting the Jeep’s license plate. The witness also reported that the Jeep turned into an

2
apartment complex parking lot about 500 feet from the bank. In the lot, the robbers left

the Jeep, still running, and a shotgun, and jumped into a stolen Ford minivan. The van

left the parking lot as police officers entered to investigate. After an eyewitness reported

the vehicle swap, which the officers reported over the police dispatch radio, another

officer who was approaching the apartment complex observed the van and began

following it.

During the ensuing chase, the robbers fired shots at the officer on the road and in

an open square in New Brunswick, New Jersey. The officer radioed that shots had been

fired. Ultimately, the chase continued through a residential area until the van crashed

into a security gate at St. Peter’s University Hospital. The robbers exited the van, and a

firefight between them and the police ensued. The robbers ran through a residential

neighborhood, some taking off layers of clothing as they ran. Finally, a police officer

trapped the robbers in a cul-de-sac, where two of them pointed their guns at the police.

The police fired, striking three of the four robbers. Police then arrested the four robbers.

Muhammad, Peterson, and another co-defendant were charged in the U.S. District

Court for the District of New Jersey with three counts: (1) conspiracy to commit bank

robbery by force and violence, or intimidation, contrary to 18 U.S.C. § 2113(a), in

violation of 18 U.S.C. § 371; (2) armed bank robbery by force and violence, or

intimidation in violation of 18 U.S.C. § 2113(a), (d), and § 2; and (3) use of a firearm in

furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and § 2.

The co-defendant pleaded guilty. Muhammad and Peterson proceeded to trial on

November 3, 2010.

3
 During the five-day jury trial, the Government presented the testimony of bank

employees, a bank security manager, and eyewitnesses to different stages of the escape,

chase, apprehension, and subsequent investigation, including various police officers and

detectives. One of the detectives testified as an expert in latent fingerprint processing,

and another detective testified as an expert in firearms operation. An FBI forensic

examiner also testified as an expert in DNA profiling and statistics. The Government

also called the owners of the stolen vehicles as witnesses. Additional trial evidence

included bank security camera footage, GPS devices, physical evidence found in the

abandoned van (including the masks worn by the perpetrators), and audio recordings of

police radio dispatches. The Government also introduced certain articles of clothing

(e.g., pants, sweatshirts, gloves, and shoes) that the police recovered from the defendants

at the time of their arrest or shortly thereafter.

On November 9, 2010, the jury convicted Muhammad and Peterson of all three

counts against them. 1 The District Court sentenced Muhammad to a within-guidelines

imprisonment term of 225 months. The District Court calculated Muhammad’s guideline

range for imprisonment as 87 to 108 months based upon a total offense level of 27 and a

criminal history category of III. Additionally, he received a mandatory consecutive

sentence of 120 months on Count Three for use of a firearm during a violent crime under

§ 924(c).

1
The jury also returned a unanimous verdict on a supplemental question that is not at
issue here.

4
 Peterson also received a within-guidelines imprisonment term, totaling 562

months. 2 Having previously been convicted of a crime under 18 U.S.C. § 924(c),

Peterson’s mandatory minimum consecutive sentence on Count Three was 25 years. The

District Court also entered a revocation judgment against Peterson, who was on

supervised release at the time of the robbery. For the revocation, the District Court

sentenced him to an additional 81 months to be served consecutively with his sentence on

the robbery charges.

Muhammad and Peterson timely filed notices of appeals. The District Court had

jurisdiction over these cases under 18 U.S.C. § 3231. Our Court has jurisdiction to

review judgments of conviction under 28 U.S.C. § 1291, and challenges to sentences

under 18 U.S.C. § 3742(a).

II.

Muhammad and Peterson argue that their right to cross-examination under the

Confrontation Clause was violated when the District Court allowed FBI forensic expert,

Nicole Nicklow, to testify about the results of, and procedures used to perform, certain

DNA tests that matched the defendants to the robbers’ apparel and masks, without her

having personally performed or supervised those tests. They claim that her testimony

constituted an out-of-court testimonial statement, and that they did not have a prior

opportunity to cross-examine the lab technicians who actually performed the tests, but

did not testify at trial.

2
Peterson’s lengthy sentence was a function of his career offender status.
5
 Even assuming, arguendo, the District Court erred in admitting Nicklow’s

testimony, we conclude such error is harmless. An evidentiary error that runs afoul of the

Confrontation Clause is harmless only if we conclude beyond a reasonable doubt that the

error did not contribute to the jury’s judgment of conviction. See United States v. Lore,

430 F.3d 190, 209 (3d Cir. 2005). Our Court “consider[s] numerous factors in assessing

whether the erroneous admission of testimonial evidence in violation of the

Confrontation Clause was harmless to the defendant, including the importance of the

testimony to the Government’s case, the cumulative nature of the evidence, the existence

of corroborating evidence, the extent of cross-examination allowed in the case, and the

strength of the Government’s case as a whole.” United States v. Jimenez, 513 F.3d 62, 78

(3d Cir. 2008) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

Considering all of these factors—particularly the breadth and nature of the other

overwhelming and cumulative evidence that the Government offered at trial—it appears

beyond a reasonable doubt that the guilty verdicts rendered on all three counts were not

attributable to any constraint on Muhammad and Peterson’s rights to confrontation that

may have resulted from Nicklow’s testimony. The Government’s case-in-chief rendered

any evidence concerning DNA testing cumulative, if not superfluous. 3 The

Government’s case against Muhammad and Peterson was formidable. The evidentiary

3
Although the Government frequently referenced the DNA evidence during its closing
statement, it also commented that the DNA evidence was a “throw-in.” JA745:25. The
Government further discussed evidence, including documents and physical evidence,
which demonstrated that the suspects were wearing the same articles of clothing, such as
gloves, shoes, and pants, both at the bank and the time of their apprehension, noting that
this “evidence is almost stronger than the DNA evidence.” JA748:1-19; see also
JA749:24 to JA750:16.
6
record connecting Muhammad and Peterson to the crimes was overwhelming and

convincing, particularly including the testimony of numerous witnesses who were present

at virtually every stage of the robbery, chase, and apprehension, as well as bank

surveillance footage in which the robbers could be seen wearing apparel that was

confiscated from the defendants at the time of their arrest, and a wide array of physical

evidence recovered from the getaway vehicles and the defendants themselves, including

the stolen cash and security guard’s gun, as well as the perpetrators’ own weapons,

apparel, and masks. Accordingly, to the extent that allowing Nicklow’s testimony

constituted error, it was harmless.

III.

Muhammad and Peterson challenge several of the District Court’s evidentiary

rulings, which we address seriatim. Unless a decision was based upon an interpretation

of the Federal Rules of Evidence, we review district court rulings on the admissibility of

evidence for abuse of discretion. See United States v. Serafini, 233 F.3d 758, 768 n.14

(3d Cir. 2000) (citing United States v. Pelullo, 964 F.2d 193, 199 (3d Cir. 1992)). “An

abuse of discretion occurs only where the district court’s decision is ‘arbitrary, fanciful,

or clearly unreasonable’—in short, where ‘no reasonable person would adopt the district

court’s view.’” United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (quoting United

States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)).

Even if an evidentiary ruling constitutes error, the harmless error analysis applies:

“A non-constitutional error at trial does not warrant reversal where ‘it is highly probable

that the error did not contribute to the judgment.’” United States v. Stadtmauer, 620 F.3d

7
238, 265-266 (3d Cir. 2010) (quoting United States v. Helbling, 209 F.3d 226, 241 (3d

Cir. 2000)).

However, if a defendant failed to properly preserve an objection at trial, we review

for “plain error that affects substantial rights.” See Fed. R. Crim. P. 52(b). Under this

standard of review, error is reversible under limited circumstances:

[A]n appellate court may, in its discretion, correct an error not raised at trial
only where the appellant demonstrates that (1) there is an “error”; (2) the
error is “clear or obvious, rather than subject to reasonable dispute”; (3) the
error “affected the appellant’s substantial rights, which in the ordinary case
means” it “affected the outcome of the district court proceedings”; and (4)
“the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.”

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (quoting Puckett v. United States,

556 U.S. 129, 135 (2009)).

A.

Muhammad claims that the District Court abused its discretion by admitting as

business records two bank teller reports showing the losses from the bank tellers’ cash

drawers, because the witness was not “qualified” and could not lay sufficient foundation

for the reports under Fed. R. Evid. 803(6). We conclude this argument is without merit. 4

Rule 803(6) creates a hearsay exception for the admission of business records if

“the testimony of the custodian or another qualified witness” shows: (1) “the record was

made at or near the time by—or from information transmitted by—someone with

knowledge”; (2) “the record was kept in the course of a regularly conducted activity of a

4
Peterson joins this argument on appeal without having raised any objection before the
District Court. For the same reasons we find no abuse of discretion as to Muhammad, we
find no plain error as to Peterson.
8
business”; and (3) “making the record was a regular practice of that activity.” Fed. R.

Evid. 803(6). Our Court broadly interprets the term, “qualified witness”; to be qualified,

a witness only needs to “have familiarity with the record-keeping system” or

“understand[] the system.” United States v. Console, 13 F.3d 641, 657 (3d Cir. 1993);

see also United States v. Furst, 886 F.2d 558, 572 n.18 (3d Cir. 1989) (recognizing that

“the issue is whether the witness, whether inside[] or outside [the business], has sufficient

personal knowledge from which to testify to the elements required to establish the

foundation”).

Here, the foundational requirements of Rule 803(6) were met. The witness, Colby

Miller, demonstrated sufficient familiarity and understanding of the bank’s record

keeping system to establish he was a qualified witness, and his testimony set forth the

necessary showing for a business record under the Rule. As the Bank of America

Corporate Security Protective Services Manager, Miller was responsible for the bank’s

security program and equipment, as well as assisting law enforcement’s investigation of

robberies. To assist such investigations, Miller would collect security surveillance

videotape and images of the robbery, and written witness statements, as well as interview

bank security officers present at the time of the robbery. Miller would also collect bank

teller loss reports from either the bank manager or assistant manager. These reports were

obtained from a computer system known as the Merlin Bank System. As Miller testified,

the Merlin system would record information about the activity at a teller’s station during

the normal course of the bank’s business based upon tellers counting down cash in their

drawers and then reporting the amount counted to the system; the system would then

9
calculate any difference between the amounts each drawer should have and the amount a

teller reported. 5 As a matter of routine practice, the bank would perform the same

countdown procedure and Merlin system calculation following a robbery incident. Miller

testified that he collected two such loss reports prepared the evening of the March 12,

2009 robbery based upon two teller drawers from which the robbers obtained cash.

Such testimony was sufficient to demonstrate Rule 803(6)’s foundational

requirements. Accordingly, we conclude the District Court did not abuse its discretion by

admitting the two loss reports as business records.

B.

Muhammad’s next evidentiary argument concerns the admissibility of Miller’s

testimony describing what he saw depicted in still images obtained from the bank’s

security surveillance video. He contends that the District Court abused its discretion by

admitting this testimony as lay witness testimony under Fed. R. Evid. 701. For admission

of such testimony to be proper under the Rule, the witness’s opinions or inferences must

be: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding

the witness’s testimony or to determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid.

701. Muhammad argues the prerequisites under subsections (a) and (b) were not met

5
After the two loss reports were admitted into the record over defense counsel’s
objection, Miller further clarified that tellers would count down cash in their drawers
randomly throughout a given day and that the amount counted would be compared to the
amount of cash with which the teller started initially.
10
since Miller was not an eyewitness to the bank robbery and the testimony was not helpful

to the determination of a fact in issue. We disagree. 6

First, contrary to Muhammad’s contention otherwise, Miller’s testimony was

based upon his personal knowledge, and specifically what he saw in the surveillance

videotape and image stills derived from that footage. His prior review of the surveillance

videotape for the purpose of reporting details of the robbery to the bank’s corporate

security, and his familiarity with the bank’s premises and employees, made him eligible

under Fed. R. Evid. 701(a) to testify about what was depicted in the video and footage

stills. Cf. United States v. Leo, 941 F.2d 181, 193 (3d Cir. 1991) (concluding that

testimony was rationally based on a witness’s review of business records pursuant to an

audit investigation).

Second, Miller’s testimony was helpful in allowing the jury to understand the

security footage in terms of the angles in which the security cameras were oriented in the

bank, what features of the bank were depicted, and identifying a bank employee. His

testimony about the images also was helpful to understanding whether the subject matter

of a particular image was moving or still, and pointing out other specific details present in

the images that might not be apparent to a jury upon a single viewing. Cf. United States

v. Begay, 42 F.3d 486, 503 (9th Cir. 1994) (“[I]t is reasonable to assume that one viewing

6
Peterson joins Muhammad’s argument on appeal without having preserved this issue
before the District Court. As we find no abuse of discretion as to Muhammad, we
similarly find no plain error as to Peterson.
11
a videotape of a demonstration involving over 200 people would likely not see certain

details, given the tremendous array of events all occurring simultaneously.”). 7

Moreover, Muhammad and Peterson had the ability to test any weaknesses in

Miller’s testimony concerning the surveillance videotape and images through cross-

examination. See Fed. R. Evid. 701 advisory committee’s note (recognizing that Fed. R.

Evid. 701(b) presumes that “cross-examination and argument will point up the weakness”

in lay witness testimony); see also Gov’t of V.I. v. Knight, 989 F.2d 619, 630 (3d Cir.

1993) (recognizing same). They chose not to do this, however. Peterson did not cross-

examine Miller, and Muhammad’s cross-examination of Miller exclusively involved

questions about the Merlin system.

Additionally, Miller’s testimony was not an attempt “to introduce meaningless

assertions which amount to little more than choosing up sides” and thus warrants

“exclusion for lack of helpfulness.” Fed. R. Evid. 701 advisory committee’s note. He

did not express opinions about any of the ultimate issues to be decided by the jury. Cf.

Hirst v. Inverness Hotel Corp., 544 F.3d 221, 226-27 (3d Cir. 2008) (concluding

testimony was not helpful under Fed. R. Evid. 701(b) because it went to the “ultimate

issue of causation”).

7
Additionally, Muhammad’s counsel objected to Miller’s testimony on grounds that it
intimated that the image quality may not have been “clear.” See JA60:16-18 (“And I find
that Mr. Miller’s gloss on this, ‘oh, he’s holding a gun, it has a barrel,’ may not be so
clear to the jury if they take a look at the picture . . . .”). Insofar that image quality might
have been poor, Miller’s testimony would have helped the jury efficiently discern what
the images depicted in light of his prior viewing of the video footage.
12
 In sum, we cannot conclude the District Court abused its discretion in admitting

Miller’s surveillance videotape and image testimony as a lay opinion. 8

C.

Muhammad and Peterson raise another lay opinion challenge to the testimony of

Jennifer Walsh concerning the two GPS tracking devices hidden in the stolen money and

the tracking data emitted from the devices during the robbery. The District Court erred,

they claim, by admitting the testimony under Fed. R. Evid. 701 when it could not meet

any of the Rule’s three prerequisites primarily because Walsh was unable to explain

certain aspects of the tracking system’s specific performance and accuracy during the

robbery, and had no scientific background concerning the functionality of the GPS

device. Additionally, Muhammad and Peterson claim that Government Exhibits 1008A

and B, 1009A, B, and C, which were the spreadsheet data and tracking maps derived

from the data emitted from the tracking devices, lacked foundation.

Even if we assume, arguendo, that these rulings were in error, they were harmless.

Given the aforementioned overwhelming and convincing evidence that the Government

introduced at trial, it is highly probable that any such error did not contribute to the

judgment. The Government produced at trial eyewitnesses, including an eyewitness who

8
To the extent that certain aspects of Miller’s testimony could be deemed to be lacking
in helpfulness under Fed. R. Evid. 701(b) by drawing inferences or conclusions that the
jury was equally capable of drawing, such as, by way of example, the color of an
individual’s shoes or bag, Muhammad and Peterson make no specific contention as to
how such inferences or conclusions could have adversely affected the jury’s verdict.
Moreover, given the overwhelming and cumulative evidence that the Government offered
at trial, as previously discussed, we conclude that to the extent there was any error in
admitting Miller’s testimony, it is highly probable that such error did not contribute to the
verdict, and thus was harmless.
13
saw the robbers’ jeep pull out of the bank’s parking lot and the officer who chased the

robbers’ van, who testified as to the movements and location of the robbers’ vehicles

from the time they left the bank’s premises to the time they were apprehended—

effectively the same facts which the spreadsheets and maps showed. Much like the DNA

evidence that the Government introduced, the GPS tracking data and Walsh’s testimony

about the data were clearly cumulative. 9 Furthermore, Muhammad and Peterson have

raised no argument that the error was prejudicial. Thus, if indeed any error did occur, it

was not reversible error.

D.

Muhammad and Peterson argue that the District Court erred by allowing victims

of the robbery—specifically, two bank tellers, Best Fumador and Parandeep Singh, and

the security guard, Alejandro Ambrose—to testify about their states of mind during the

robbery and the impact that the robbery subsequently had on their lives. According to the

Defendants, such impact testimony was irrelevant and unduly prejudicial under Fed. R.

Evid. 401 and 403.

Because only Peterson objected on relevance grounds to Fumador’s testimony

concerning the effect the robbery subsequently had on his life, we review that challenge

for abuse of discretion. We review the other assignments of error, which were not

preserved at trial by defense objection, for “plain error that affects substantial rights.”

9
Indeed, the Government acknowledged during its closing argument that the physical
evidence recovered from Muhammad at the time of his arrest was “almost better than the
GPS evidence” in connecting him to the robbery. JA748:18.
14
 We conclude that the District Court did not abuse its discretion by overruling

Peterson’s relevance objection to Fumador’s testimony. How the robbery impacted

Fumador was at least minimally probative of whether the Defendants took something of

value “by force and violence, or by intimidation,” one of the elements of bank robbery

under 18 U.S.C. § 2113(a). Under Section 2113(a), “intimidation” means “to make

fearful or put into fear,” and requires an objective focus on whether “‘an ordinary person

in the teller’s position would feel a threat of bodily harm from the perpetrator’s acts.’”

United States v. Askari, 140 F.3d 536, 541 (3d Cir. 1998) (en banc) (quoting United

States v. McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994)), vacated on other grounds by 159

F.3d 774 (3d Cir. 1998) (en banc). Although the inquiry concerns whether a defendant’s

conduct was objectively intimidating, evidence concerning how a victim was impacted by

the defendant’s acts after they were committed would nonetheless be within the realm of

evidence that could be relevant to prove the defendants’ intimidation. Such evidence

would have the tendency to make the fact of objective intimidation more or less probable

than it would be in the absence of such evidence. See Fed. R. Evid. 401; cf. United

States v. Smith, 973 F.2d 603, 604 (8th Cir. 1992) (“Evidence that the defendant’s acts

did induce fear in an individual victim is probative of whether his acts were objectively

intimidating.”) (citing United States v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987)). As

such, the District Court acted well within its sound discretion in permitting Fumador’s

testimony as relevant. 10

10
Muhammad joined Peterson in this argument even though he did not raise any
objection to this evidence at trial. For the same reasons that we conclude the District
15
 Similarly, it was not plain error on the basis of Fed. R. Evid. 403 to admit the

other victims’ impact testimony as it pertained to themselves personally, or their

observations about the reactions of the bank’s customer. Those victims’ testimony was

probative of whether the Defendants were objectively intimidating, and thus admission

on the grounds of relevance was not erroneous, let alone constitute a clear or obvious

error. We also do not find plain error on grounds of undue prejudice because the

testimony does not appear to have the tendency to lead the jury “into declaring guilt on a

ground different from proof specific to the offense charged.” Old Chief v. United States,

519 U.S. 172, 180 (1997); see also United States v. Gatto, 995 F.2d 449, 457 (3d Cir.

1993) (“[W]hen a trial court is not given the opportunity to exercise its discretion in

striking the [requisite Rule 403] balance, we will seldom find plain error . . . .”).

E.

At trial, three police officers each testified that they heard reports over the police

dispatch radio that the robbery suspects were armed and that a weapon was discharged

during the pursuit of the robbery suspects. Muhammad and Peterson claim that the

admission of this repeated testimony was error because it was, first, inadmissible hearsay

under United States v. Sallins, 993 F.2d 344 (3d Cir. 1993), and, second, unduly

prejudicial and cumulative under Fed. R. Civ. Evid. 403. We disagree.

Court did not abuse its discretion in permitting this testimony as relevant, we conclude
there was no plain error with respect to Muhammad.
16
 The radio dispatch statements did not constitute hearsay under the law of our

Circuit. 11 The statements were not offered for their truth but rather offered for the

purpose of explaining the context of the officers’ actions in responding to the scene and

apprehending the suspects. See Price, 458 F.3d at 210 (holding that “[p]olice officers are

permitted under Sallins to explain the background context for their arrival at a scene”).

Detective Steven Dunkel explained he did not follow the suspects’ van closely due to a

dispatch that reported that the suspects likely were armed. Officer Adam Ramirez

explained that because of the dispatch reports he heard, he sought immediate cover

behind a police car upon arriving near the suspects’ parked van. Officer Michael

Coppola explained that upon hearing the dispatch reports he and his partner retrieved

weapons from their lock boxes at police headquarters and, after exiting his vehicle at the

scene, he drew his weapon. Additionally, Detective Dunkel’s testimony at trial about the

very radio dispatch he made, communicating that the suspects had fired a weapon during

his pursuit, further demonstrates that the other two officers’ testimony was background.

See id. at 211 (recognizing that Sallins does not apply when the officer who actually

issued the radio dispatch testifies because it demonstrates that the background testimony

was not serving as “illegitimate backdoor eyewitness testimony”). Accordingly, the three

officers’ testimonies were not hearsay.

Additionally, the testimonies were not unduly prejudicial or cumulative. The three

officers’ testimonies do not appear to be of such a nature that they were likely to incite

11
Whether a statement constitutes hearsay is a legal question subject to plenary review.
See United States v. Price, 458 F.3d 202, 205 (3d Cir. 2006).
17
the jury to render an irrational decision. See Old Chief, 519 U.S. at 180. Beyond labeling

the testimonies as “inflammatory,” Muhammad and Peterson have advanced no specific

explanation as to how the jury might be unfairly influenced based upon such evidence,

and thus it is unclear to us where any undue prejudice might lie. Cf. McQueeney v.

Wilmington Trust Co., 779 F.2d 916, 923 (3d Cir. 1985) (“The court did not articulate

any reasons for its finding of prejudice, and this does not appear to us to be the kind of

evidence with obvious or overwhelming potential for unfair prejudice. In the absence of

a showing of particularized danger of unfair prejudice, the evidence must be admitted.”).

Reversal of a ruling under Rule 403 is warranted only if the district court’s analysis and

ruling was “arbitrary or irrational,” or if no reasonable person would adopt the district

court’s view. See United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665

(3d Cir. 2000) (en banc); Green, 617 F.3d at 239. Because no reasonable person could

agree here that the prejudicial effect of the evidence, if any, outweighed its probative

value, we determine that the District Court did not abuse its discretion by failing to

exclude the three officers’ testimonies as unduly prejudicial.

Finally, the testimony concerning the police dispatches was brief in the context of

the witnesses’ individual testimonies, and the overall trial; any contribution of the

testimonies to the length of trial was minimal. It would not be arbitrary or irrational to

reason that any “contribution to the length of trial” was outweighed by the “contribution

to the determination of truth” concerning the context of the officers’ conduct. See United

States v. Cross, 308 F.3d 308, 326 (3d Cir. 2002) (quoting United States v. Williams, 81

F.3d 1434, 1443 (7th Cir. 1996)).

18
 Accordingly, the District Court did not abuse its discretion in allowing the three

witnesses to testify about the radio dispatches they heard concerning the discharge of

firearms during the suspects’ flight from the bank.

F.

In another evidentiary challenge concerning an audio recording of Detective

Dunkel’s police radio dispatch report, Muhammad and Peterson argue that the recording,

in which Detective Dunkel exclaims, “Shots fired! Shots fired!,” was improperly

admitted. The recording, they claim, was irrelevant, unduly prejudicial, and

cumulative. 12 We conclude that no abuse of discretion occurred by admitting the

recording into evidence.

Our Court has “consistently treated escape as part and parcel of a bank robbery,

including federal bank robbery as defined in 18 U.S.C. § 2113” and recognized that acts

incidental to an escape, such as weapon discharges, are “‘within the scope of the federal

Bank Robbery Act, 18 U.S.C. § 2113(d),’ and thus within § 2113(a) as well.” United

States v. Williams, 344 F.3d 365, 372 (3d Cir. 2003) (quoting Gov’t of V.I. v. Dowling,

633 F.2d 660, 668-69 (3d Cir. 1980)). Thus, evidence showing that the suspects

discharged a firearm during the chase, as the recording demonstrates, was probative of

the offenses charged. Furthermore, the probative value of the recording outweighs any

undue prejudice that Detective Dunkel’s excited tone, as heard in the recording, may

have prompted. Additionally, the recording was not cumulative since its “contribution to

12
The parties agree that the audio recording falls under the hearsay exceptions of Fed. R.
Evid. 803 and would not be excluded by the rule against hearsay.
19
the length of trial” did not outweigh its “contribution to the determination of truth” for

which it was offered. See Cross, 308 F.3d at 326. In sum, the admission of the recording

did not contravene Fed. R. Evid. 401, 402, and 403, and thus there was no abuse of

discretion.

G.

Muhammad also claims the admission of an audio recording of Officer Ramirez’s

police radio dispatches for the purpose of rebutting the defense’s impeachment of Officer

Ramirez’s credibility was in error in two respects. 13 Because neither of these claims of

error were preserved before the District Court, we apply plain error review and conclude

both of Muhammad’s arguments are without merit. 14

First, Muhammad argues that Officer Ramirez’s dispatch statement reporting that

three or four males exited the van at St. Peter’s University Hospital was improperly

admitted as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B). He claims that

the statement did not satisfy one of the four prerequisites for admissibility under the Rule,

which requires that “the proponent must offer a prior consistent statement that is

consistent with the declarant’s challenged in-court testimony.” United States v. Frazier,

469 F.3d 85, 88 (3d Cir. 2006). We disagree.

On direct examination, Officer Ramirez stated he had seen four individuals exit

the van. Muhammad’s cross-examination suggested that Officer Ramirez had fabricated

13
Peterson does not advance this argument on appeal.
14
Although Muhammad objected to the admission of the recording at trial, his grounds
for objecting were entirely different from his arguments of error on appeal.
20
this testimony and proffered a videotape deposition taken the day after the robbery. In

that videotape, Officer Ramirez stated that he had seen two to three individuals exiting

the van, and that it was not until the defendants were arrested that he realized four

individuals were involved. In rebuttal, the Government sought to offer the dispatch

recording made at the time of the chase—in which Officer Ramirez recounted his

observation that three or four men exited the van. This dispatch statement is sufficiently

consistent with the challenged in-court testimony for purposes of Fed. R. Evid.

801(d)(1)(B). “The purpose of Rule 801(d)(1)(B) is not to ‘bolster[] the veracity of the

story told,’ but to rebut a charge of recent fabrication or improper influence or motive.”

Frazier, 469 F.3d at 88 (quoting Tome v. United States, 513 U.S. 150, 158 (1995)). It

follows that the rule allows the “use of earlier statements that are generally consistent

with the testimony at trial.” United States v. Casoni, 950 F.2d 893, 904 (3d Cir. 1991);

see also United States v. Vest, 842 F.2d 1319, 1329 (1st Cir. 1988) (“[A] prior consistent

statement need not be identical in every detail to the declarant’s . . . testimony at trial

. . . .”). Officer Ramirez’s dispatch statement that he observed three to four individuals

exit the van is generally consistent with his trial testimony that he saw four individuals

exit the van, and thus sufficiently within the ambit of Rule 801(d)(1)(B). The District

Court thus did not commit error, let alone clear or obvious error, in admitting Officer’s

Ramirez’s prior statement under Rule 801(d)(1)(B).

In his second argument against the admission of the audio of Officer Ramirez’s

dispatch report, Muhammad asserts undue prejudice. He claims that the Government

played not only Officer Ramirez’s statement concerning the number of individuals that

21
emerged from the van, but also additional statements from the same recording, including

Officer Ramirez exclaiming, “shots fired,” and stating that he observed a minivan with

the back window shot out. Muhammad claims these additional statements were unduly

prejudicial. However, in our assessment, those statements do not plainly appear to have

the tendency to influence the jury to render an irrational decision. See also Gatto, 995

F.2d at 457. We conclude that there was no plain error in the admission of the additional

statements.

IV.

Muhammad and Peterson contend that several instances of prosecutorial

misconduct denied them a right to fair trial. We conclude that none of the claims of

misconduct warrant a new trial.

There are four instances of purported prosecutorial misconduct at issue. The first

one advanced by the Defendants arises from the Government asking Detective Dunkel on

re-direct examination whether it was “[s]afe to say the defendant wasn’t a very good

shot?” The question was prompted by cross-examination that probed how Detective

Dunkel knew a weapon was discharged at his vehicle during his pursuit of the robbery

suspects when no bullet actually struck his vehicle. The Defendants claim that the

Government’s use of the term, “defendant,” instead of the more generic terms, “suspect”

or “shooter,” implied, without support, that specifically Muhammad or Peterson

discharged the firearm during Detective Dunkel’s pursuit of the suspects’ van.

Muhammad and Peterson objected, but the District Court overruled it and did not give a

curative instruction. However, the District Court had instructed the jury both at the

22
beginning and end of trial that the lawyers’ statements, arguments, objections, and

questions did not constitute evidence and that their decisions in the case could be based

only on the evidence presented. 15

Muhammad claims, as the second instance of misconduct, that the Government

engaged in misconduct by inadvertently publishing to the jury two photographs of bucal

swabs used to obtain DNA testing samples from Muhammad and Peterson. 16 Labels on

the swabs indicated that the samples were taken at “Middlesex Jail.” Upon Muhammad’s

objection, the Court declined to give a curative instruction for the two non-redacted

photographs of the bucal swabs, reasoning that such an instruction would “actually call

more attention” to the reference to “Middlesex Jail” on the swabs’ labels, and neither

Defendant objected. However, the District Court ordered that the photographs be

redacted of that information before being presented again to the jury, and neither

Muhammad nor Peterson objected.

Muhammad and Peterson also claim that the third instance of misconduct occurred

when the Government inadvertently published to the jury a photograph of Muhammad

wearing an orange sweater which was purportedly taken after his apprehension.

Immediately following this brief publication, the District Court barred the photograph

from evidence and gave the jury a curative instruction that the photograph was not in

15
We note that the trial transcript does not transcribe the Court’s preliminary jury
instructions, instead noting parenthetically, “Court gives jury instructions.” JA6:8.
Nonetheless, in charging the jury at the conclusion of the trial, the Court prefaced its
instructions concerning evidence and what constitutes as evidence with the comment, “As
I told you in my preliminary instructions . . . .” JA681:21.
16
Peterson does not join this argument on appeal.
23
evidence and was to be disregarded and that they could only consider documents in

evidence and the witness’s testimony.

Finally, Muhammad and Peterson argue that a fourth instance of misconduct arose

when the Government argued during closing that certain DNA evidence demonstrated

that a particular mask and certain items of clothing were worn by Muhammad during the

robbery. Defendants contend this argument was unsupported because they had attacked

the weight of the DNA evidence on cross-examination.

The District Court ruled on objections to the first three instances of purported

misconduct, and we review those rulings for abuse of discretion. See United States v.

Brown, 254 F.3d 454, 458 (3d Cir. 2001). However, even if prosecutorial misconduct

occurred, we apply the harmless error standard and will not reverse if it is beyond a

reasonable doubt that the constitutional error did not contribute to the judgment. See

United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc). Reversal is

warranted only “if we conclude that the prosecutor’s remarks, taken in the context of the

trial as a whole, prejudiced the defendants.” Id. If a defendant did not

contemporaneously object to the purported prosecutorial misconduct, as is the case with

the fourth instance of purported misconduct, we review for plain error. See United States

v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003).

Even if we were to find error for the first three instances of supposed misconduct,

we conclude that the District Court was within its discretion to deny the motions for a

mistrial because the supposed acts of misconduct were harmless, in light of their scope in

relation to the context of the trial, the ameliorative effect of any curative instructions, as

24
well as the strength of the evidence supporting the jury’s verdict. See United States v.

Gambone, 314 F.3d 163, 179 (3d Cir. 2003); Zehrbach, 47 F.3d at 1265. These brief

instances of purported misconduct had a negligible impact on the outcome of the trial.

This is particularly so given that the District Court’s various instructions ameliorated any

possible prejudicial effect. Moreover, as we have discussed previously, the convincing

evidence that the Government presented against Muhammad and Peterson was

overwhelming and supports the convictions. We thus are assured beyond a reasonable

doubt that the three incidents of purported misconduct did not contribute to Muhammad

and Peterson’s convictions. Accordingly, the District Court did not abuse its discretion in

denying the motions for mistrial.

As to Muhammad and Peterson’s claim—the fourth instance of misconduct—that

the Government made closing arguments unsupported by the record, we find no plain

error. The closing statements of which Defendants complain do not “reveal egregious

error or a manifest miscarriage of justice.” Brennan, 326 F.3d at 182 (internal quotations

omitted). For one, their argument does not account for the fact that the prosecution

connected Muhammad and Peterson to various articles of clothing and masks not only

based upon DNA evidence, but also physical and documentary evidence that showed

Defendants wearing certain articles of clothing while at the bank and at the time of their

apprehension. Moreover, we do not find any colorable miscarriage of justice here. Thus,

the Court’s refusal to declare a mistrial based on the Government’s statements did not

constitute plain error.

25
 V.

Finally, Muhammad and Peterson raise individualized sentencing claims, which

we address below.

A.

Muhammad challenges the District Court’s offense level calculation under the

U.S. Sentencing Guidelines, contending that a two-level enhancement for reckless

endangerment during flight under U.S.S.G. § 3C1.2 (2010) should not have been applied

because Note 1 of U.S.S.G. § 3C1.2 and Note 4 of U.S.S.G. § 2K2.4 bar the application

of that enhancement. However, neither of these double counting prohibitions applies in

these circumstances. 17

Our Court has held that “[o]nly when the Guidelines explicitly prohibit double

counting will it be impermissible to raise a defendant’s offense level under one provision

when another offense Guideline already takes into account the same conduct.” United

States v. Fisher, 502 F.3d 293, 309 (3d Cir. 2007) (quoting United States v. Wong, 3 F.3d

667, 671 (3d Cir. 1993)) (emphasis added). Note 1 of U.S.S.G. § 3C1.2 is one such

double counting prohibition. It instructs district courts not to apply U.S.S.G. § 3C1.2, a

two-point enhancement for reckless endangerment during flight, under certain delineated

circumstances. Those particular circumstances are when: (1) the District Court applies a

Chapter 2 offense guideline, or another Chapter 3 adjustment, that “results in an

17
Our standard of review is plenary for the District Court’s interpretation of the
Sentencing Guidelines, and we apply the abuse-of-discretion standard for the application
of the Guidelines. See United States v. Tupone, 442 F.3d 145, 149 (3d Cir. 2006).
26
equivalent or greater increase in offense level,” and (2) that resultant offense level is

“solely on the basis of the same conduct.” U.S.S.G. § 3C1.2, n.1 (emphasis added).

Here, the District Court applied the reckless endangerment enhancement for

Muhammad based upon the discharge of weapons and reckless driving during flight.

Muhammad contends there was no evidentiary basis to connect him to the reckless

driving and as such the only factual predicate for the reckless endangerment enhancement

was the discharge of weapons. Even if we accept this argument, however, the District

Court still did not apply a Chapter 2 offense guideline or other Chapter 3 adjustment that

resulted in an equivalent or greater increase in offense level based upon the same conduct.

In determining Muhammad’s offense level, the District Court applied only the base level

for § 2B3.1 for Robbery, and specific offense characteristics for taking the property of a

financial institution under § 2B3.1(b)(1), taking the security officer’s firearm under

§ 2B3.1(b)(6), and taking more than $50,000 but less than $250,000 under § 2B3.1(b)(7).

None of these specific offense characteristics were based on the same conduct so as to

trigger Note 1 of U.S.S.G. § 3C1.2. 18

Likewise, the District Court’s application of the § 2K2.4(b) offense guideline for a

18 U.S.C. § 924(c) violation does not meet the preconditions of Note 1 of U.S.S.G.

§ 3C1.2. That guideline does not set forth an offense level, but instead provides a

guideline sentence, the statutory minimum of ten years, which has no impact on an

offense level calculation.

18
By contrast, if the District Court had applied, for example, an offense level under
§ 2B3.1(b)(2)(A) for discharging a firearm during the course of robbery—which it did
not—then the preconditions of Note 1 of U.S.S.G. § 3C1.2 would be met.
27
 Because there was no offense guideline applied that “results in an equivalent or

greater increase in offense level” based on the same conduct, Note 1 of U.S.S.G. § 3C1.2

is inapplicable in these circumstances. It follows that Note 1 does not prohibit the

application of a reckless endangerment enhancement.

Muhammad also makes a double counting argument based on Note 4 of U.S.S.G.

§ 2K2.4, urging that Note 4 prohibits the District Court’s application of the two-level

enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. We

disagree. Note 4 provides that a sentencing court shall “not apply any specific offense

characteristic for possession, brandishing, use, or discharge of an explosive or firearm” in

connection with the sentence for the underlying offense if the defendant is also sentenced

under 18 U.S.C. § 924(c). The enhancement at issue here is not a weapons enhancement,

nor a specific offense characteristic pertaining to a weapon. Rather, it is a Chapter Three

adjustment for recklessly endangering others in flight. Unquestionably, Muhammad’s

course of conduct during the police chase recklessly endangered others. The

enhancement for § 3C1.2 is not limited to, or synonymous with, possession,

brandishment, use, or discharge of a weapon. It is designed to increase a defendant’s

punishment for precisely the type of dangerous foot chase that occurred here, one that

involved exchanging gunfire with police in the midst of racing through backyards and

darting across driveways and a street in a residential neighborhood. 19 Because Note 4 of

19
Note 5 of U.S.S.G. §3B1.2 provides that the reckless endangerment enhancement
applies if a defendant is accountable for conduct that he “induced” or “willfully caused.”
Muhammad thus would be accountable for the police discharging their weapons which he
28
U.S.S.G. § 2K2.4 only bars specific offense characteristics pertaining to weapons, or

weapons enhancements, it does not bar the enhancement for reckless endangerment

during flight. See Roger W. Haines, Jr., et al., Federal Sentencing Guidelines Handbook:

Text and Analysis 802 (2010-11 ed.) (“[E]nhancements for factors other than guns are not

improper double counting [under Note 4 of U.S.S.G. § 2K2.4].”). Cf. United States v.

Thompson, 515 F.3d 556, 563 (6th Cir. 2008) (concluding that there was no double

counting when the sentencing court imposed a sentence for § 924(c) and the “official

victim” enhancement under U.S.S.G. § 3A1.2 for the defendant firing a gun at the

police); United States v. Docampo, 573 F.3d 1091, 1099-1100 (11th Cir. 2009) (holding

that Note 4 of U.S.S.G. § 2K2.4 did not prohibit the District Court from relying on the

fact that the defendant possessed a firearm in determining whether to apply the

“mitigating role” adjustment under U.S.S.G. § 3B1.2 when the defendant was also

sentenced under § 924(c)).

In sum, we do not find the District Court abused its discretion in applying the

reckless endangerment enhancement for Muhammad’s offense level calculation.

B.

Peterson claims that because the District Court procedurally erred by failing to

demonstrate on the record consideration of the 18 U.S.C. § 3553(a) factors, as required

by 18 U.S.C.§ 3583(e), in imposing his revocation sentences for violating supervised

induced or willfully caused by refusing to surrender and pointing his weapon at and firing
upon the police.
29
release, those sentences must be vacated and the matter remanded to the District Court

for resentencing. We conclude otherwise.

When, despite the opportunity, a procedural objection is not raised to the district

court at the time of sentencing, as is the case here, we review the procedural

reasonableness of a sentence only for plain error. See United States v. Parker, 462 F.3d

273, 278 (3d Cir. 2006) (applying plain error review to an unpreserved claim of error

based on the sentencing court’s failure to give a sufficient statement of reasons under

§ 3553(c)). However, even if we assume a clear and obvious error here, we cannot

vacate Peterson’s revocation sentences unless the error affects Peterson’s substantial

rights. Peterson has made no showing how the outcome of his violation of sentence

hearing would have been altered in the absence of such error. In other words, he has not

offered proof that there was some likelihood that the sentencing court would have

imposed a lower sentence. Indeed, Peterson did not make any challenges to his

revocation sentence before the District Court, and he has not raised on appeal a

substantive reasonableness challenge to the sentence. Because there has been no showing

that Peterson’s substantial rights were affected, no plain error occurred.

VI.

For the reasons set forth above, we will affirm the District Court’s judgments

against Muhammad and Peterson.

30