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.
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.
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.