United States v. Dontiez Pendergrass

995 F.3d 858

Opinion

USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 1 of 47

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13681 ________________________

D.C. Docket No. 1:17-cr-00315-LMM-JKL-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DONTIEZ PENDERGRASS,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(April 22, 2021)

Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.

ROSENBAUM, Circuit Judge:

We vacate our opinion dated March 24, 2021, ___ F.3d ___, 2021 WL

1115426 (Mar. 24, 2021), in this case and replace it with this one. Concealing one’s USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 2 of 47

identity can literally be an art in itself. Banksy, an English street artist known for

his distinctive stenciling graffiti found along buildings in London, New Orleans, and

San Francisco,1 has long hidden his true identity and name. But new Banksy works

can often be identified by comparing them with patterns in his prior works: his

signature techniques, 2 his choice of medium—inconspicuous walls and a bag of

spray paint cans, and his unique aesthetic—black-and-white stenciled images often

accompanied by a vibrant pop of color. 3 And perhaps the biggest clues are his

satirical, thought-provoking messages underlying each piece.

Identifying patterns and whittling down a list of suspects are not just for

Banksy sleuths. Law enforcement used similar strategies to track down and identify

a suspect in a string of five robberies targeting small, mom-and-pop businesses in

the Atlanta suburb of Gwinnett County. Distinctive hallmarks—like the robber’s

left-handed use of a black-and-silver pistol, bullets or their casings cycled through

the same .40-caliber pistol in three of the five robberies, and clothing and accessories

with unique designs—that made appearances in the robberies led investigators to

1 Valerie Stimac, Banksy in America: Where to See the Subversive Graffiti Artist’s Work. Lonely Planet, (Oct. 29, 2019), www.lonelyplanet.com/articles/where-to-see-banksy-usa (last visited Mar. 23, 2021). 2 Simon Hattenstone, The Importance of Spotting a Genuine Banksy, The Guardian, (Mar. 14, 2007), https://www.theguardian.com/artanddesign/2007/mar/14/art.simonhattenstone (last visited Mar. 23, 2021). 3 https://www.the-artists.org/Banksy/#:~:text=The%20stenciled%20technique%20of%20 Banksy%20is%20what%20makes,that%20he%20uses%20a%20computer%20make%20the%20 stencils (last visited Mar. 23, 2021); see also https://www.streetartbio.com/artists/banksy/ (last visited Mar. 23, 2011). 2 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 3 of 47

Dontiez Pendergrass. Pendergrass was indicted on five counts of armed robbery

and, relatedly, carrying a firearm in furtherance of the charged robberies. Following

a five-day trial, the jury convicted him on all charges.

Pendergrass now challenges his convictions on several grounds. After careful

consideration and with the benefit of oral argument, we affirm.

I. Facts

We take the facts from the evidence presented at Pendergrass’s trial. In

particular, we review the relevant evidence concerning the robberies of each of the

five businesses: the China Star restaurant, Polo’s Taqueria, Discount Grocery,

Bonita Coin Laundry, and the Best Wings restaurant. Then we summarize the

relevant evidence law enforcement recovered when it conducted a search warrant on

Pendergrass’s residence after the robberies had occurred.

A. China Star Robbery

On the evening of November 19, 2016, the China Star Restaurant was robbed.

The owner was in the back of the restaurant preparing for closing. An armed man

with his face covered from the nose down approached, pushed one of the restaurant

employees inside, and demanded money. As the robber used his left hand to aim a

black-and-silver pistol at the owner, the owner handed over cash.

Restaurant surveillance captured the incident on video, and the jury viewed

that footage during the trial. The video revealed that the robber wore a red hooded

3 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 4 of 47

shirt under a long-sleeved black shirt with a distinctive white pattern on it.

B. Polo’s Taqueria Robbery

About a month after the China Star robbery, on December 24, 2016, three

armed men robbed Polo’s Taqueria shortly after it closed. Israel Morales, a Taqueria

employee, sat outside the restaurant after his shift ended (at around midnight), when

three men with faces covered from the nose down and covered bodies approached

him. Two of the three men carried pistols, and the third had a long gun. The long

gun was a chrome-barreled rifle with a scope on it. One of the assailants shot out

the glass in the front door of the restaurant to gain entry. Then robbers forced

Morales inside the restaurant and demanded he open the safe located in the office,

but Morales told them he did not know how.

The owner of the restaurant, Gerardo Muro, was also present during the

robbery and saw the three men approach as Morales sat out front. As this occurred,

Muro ran to the back of the restaurant and heard a gunshot, so he called 911.

Surveillance cameras again recorded the robbery, and the jury viewed the

resulting video and still photos from them. One of the robbers was a tall man who

carried a black-and-silver pistol in his left hand. He wore gloves, along with a red

shirt underneath a long-sleeved black shirt with a distinctive white pattern. And over

his clothing, he wore a single-strap cross-body backpack.

Besides this, the government presented the testimony of FBI Special Agent

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Mathew Carman, who discussed phone-related data he had collected. Carman

testified that at 10:38 p.m. and 12:35 p.m. on the night of the robbery, a phone

number ending in 1011, which was registered to Pendergrass, “pinged” off a cell

tower that covered the area where Polo’s Taqueria was located. He also attested to

Google geo-location data that revealed Pendergrass’s phone was near Polo’s

Taqueria about an hour before the robbery.

Ballistics expert Zachary Weitzel also testified. He noted the police had

recovered an intact bullet cartridge from inside the restaurant near the front windows

and identified it as ammunition for a Smith and Wesson .40-caliber gun. He also

testified, based on his review of the evidence, that the ammunition had been cycled

through the same firearm as the one used at the Discount Grocery and Best Wings

robberies we describe below. 4

C. Discount Grocery Robbery

One week after the Polo’s Taqueria robbery, on the evening of January 1,

2017, Discount Grocery was robbed. Discount Grocery is in the same shopping

plaza as the China Star restaurant. Owner Sunil Joseph was closing the store

between 9:00 and 9:30 p.m. and as he stood behind the counter, three men rushed at

4 According to Weitzel, cycling marks are “marks that were imparted on the cartridge from it going through the gun and then being ejected without being fired.” He said the shell casings from the Discount Grocery and Best Wings robberies also had specific cycling marks comparable to those on the Polo’s Taqueria cartridge. 5 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 6 of 47

him. Their faces were covered from the nose down, and all three were armed with

guns. One of the robbers grabbed Joseph and demanded he get on his knees. When

Joseph refused, the robber pistol whipped him to force him to comply. While Joseph

was on his knees, he reached for a gun located near the register. Another taller

robber, who was wearing white gloves and was armed with a black-and-silver pistol

in his left hand, answered by shooting Joseph three times. As Joseph bled, he called

911, while the robbers ran.

Joseph provided surveillance video to the police, and the government

presented this video and still photos derived from it to the jury during the trial. The

surveillance video showed that Joseph’s assailant was a man who wore a single-strap

cross-body backpack. Joseph further described the man who shot him as tall with

“dreads” and said the man wore a red headwrap.

During their investigation of the scene, officers found droplets of blood

outside the counter and several shell casings from when Joseph was shot. Forensic

DNA expert Jeremy Fletcher testified that the blood found on the floor at Discount

Grocery matched Pendergrass’s blood. In fact, he attested that the DNA on the floor

of the grocery store was 690 septillion times more likely to be Pendergrass’s than an

unknown person’s.

As for the three shell casings recovered from the floor of the grocery store, as

we have mentioned, Weitzel (the ballistics expert) confirmed that they were cycled

6 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 7 of 47

through the same Smith and Wesson .40-caliber gun used in the Polo’s Taqueria

robbery and in the Best Wings robbery we describe below. And similar to the Polo’s

Taqueria robbery, Agent Carman testified that, at 7:20 p.m. and 8:41 p.m. on the

night of the robbery, Pendergrass’s cell phone “pinged” off a cell tower that covered

the area where Discount Grocery was located. Carman also presented Google geo-

location data showing that Pendergrass’s phone was near Discount Grocery about

twenty minutes before the robbery and shooting.

D. Bonita Coin Laundry Robbery

Four days after the Discount Grocery robbery, on January 4, 2017, the Bonita

Coin Laundry was robbed. An employee of the laundry, Sonia Prudencio, was there

when it happened, as were several patrons and some young children. According to

Prudencio, the robbery occurred at around 9:00 p.m., when two armed men who

were covered up rushed into the laundromat and grabbed her fourteen-year-old

daughter. After commanding the other customers to get on the floor, the men took

Prudencio’s daughter to the safe and stole cash.

Surveillance video the store manager provided and the government played for

the jury showed a taller robber. He was wearing a red hooded shirt, white gloves,

and a covering on his face. In his left hand, he held a black-and-silver pistol.

7 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 8 of 47

Other witnesses who were threatened during the robbery also testified. The

witnesses all said that the robbers made everyone go to the restroom, where the

robbers blocked them in with a pool table so the robbers could escape.

E. Best Wings Robbery

Eleven days after the Discount Laundry robbery, on January 15, 2017, Best

Wings was robbed. The robbery occurred between 3:00 and 4:00 a.m., after Best

Wings had closed.

As Saurilius Kyzelius, a Best Wings patron, and Brittany Anderson, a Best

Wings employee, left the restaurant and approached Anderson’s car, two armed

robbers accosted them, one with a gun in his left hand. The robbers insisted that the

two return to the restaurant and demanded the key to the safe.

Another customer heard a commotion and went outside to see what was

happening. He struggled with the taller robber, who wore a red shirt and white

gloves, and carried a pistol in his left hand. During this struggle, the taller robber

fired a shot towards Anderson’s car, where Anderson and Kyzelius were attempting

to evade the other robber. The shot barely missed Kyzelius. Then the robbers forced

everyone back inside the restaurant and forced them to get on their knees. The

robbers again demanded that Anderson give them the key to the safe. When she said

she did not have it, the robbers took Kyzelius’s wallet and cash. As another car

pulled up to the restaurant, the robbers fled on foot, crossed the street, and jumped a

8 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 9 of 47

fence into a residential area near Wenham Lane—where Pendergrass was later

discovered to reside. All of this was captured on surveillance video, which the

government played for the jury.

Responding officers found the shell casing fired towards Anderson’s car and

noted what appeared to be a bullet hole in her car. Weitzel testified that the shell

casing was cycled through the same Smith and Wesson .40-caliber gun used at the

Discount Laundry robbery.

And as with some of the other robberies, Agent Carman testified that

Pendergrass’s cellphone was located near Best Wings shortly after the robbery.

Specifically, the phone ending in 1011 “pinged” off the cell towers near Best Wings

at various times between 3:35 and 3:58 a.m. Google geo-location data showed

Pendergrass’s presence within 70 meters of Best Wings just before the robbery. And

within minutes after it, the phone was back near Pendergrass’s residence at 1044

Wenham Lane.

F. Evidence Recovered During Search of Pendergrass’s Home

On March 30, 2017, law enforcement executed a search warrant at

Pendergrass’s home and for his car parked outside. In the basement of the house,

officers recovered a black single-strap cross-body backpack like the one seen in the

Discount Grocery and Polo’s Taqueria robbery videos. They also seized a black

long-sleeved shirt with a distinctive white pattern on it that looked like the robber

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wore during the Polo’s Taqueria and China Star robberies.

Inside Pendergrass’s car, officers found a rifle with a distinctive chrome barrel

and scope, like the one used by one of the robbers at Polo’s Taqueria.5 Pendergrass

admitted that the shirt and rifle were his and conceded that he was left-handed.

II. Procedural Background

A. The Indictment

Pendergrass was indicted on five counts of Hobbs Act armed robbery, in

violation of 18 U.S.C. § 1951, and five counts of brandishing or discharging a

firearm during, and in relation to, a crime of violence, in violation of 18 U.S.C. §

924(c). The federal public defender was appointed to represent Pendergrass.

B. Motion to Suppress Phone

During the proceedings, Pendergrass filed a motion to suppress certain

evidence. Below, we discuss the facts relating to that motion.

On March 10, 2017—after the robberies but unrelated to them—officers

responded to a 911 call. They found Pendergrass, who had been shot, with a gold

Porsche Cayenne about 200 feet away. Law enforcement impounded the car and

obtained a warrant to search it for “handguns, long guns, drugs, bullets, blood

and/or DNA.” Among other things, the search yielded a gold LG phone belonging

5 The search of Pendergrass’s car on March 30, 2017, was the second search of the vehicle. As we discuss in Section II.B., infra, law enforcement first searched his car on March 10, 2017. At that time, officers seized an LG cell phone. 10 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 11 of 47

to Pendergrass. An inspection of the phone revealed pictures and videos that

incriminated Pendergrass in the robberies.

Before trial, Pendergrass filed a motion to suppress the evidence from the

phone. He argued that the search of the phone was unlawful because it exceeded

the scope of the search warrant, which authorized a search of the car for only

“handguns, long guns, drugs, bullets, blood or DNA.” A magistrate judge held a

hearing on the motion and ultimately recommended granting the motion to

suppress, finding that the detective lacked probable cause to believe that the phone

contained evidence of the shooting of Pendergrass. The district court adopted the

magistrate judge’s recommendation and granted the motion to suppress the LG

phone and its contents.

C. Motion to Exclude Google Geo-Location Data

Prior to Pendergrass’s indictment, and to shore up the case against him, FBI

Special Agent Matthew Winn submitted an application for a search warrant to obtain

“data associated with Google account Dontiezpendergrass@gmail.com” including

Global Positioning System (“GPS”) data and other location data. On July 24, 2017,

a judge issued the search warrant, directing Google to provide the government with

the geo-location information associated with the Google account. Google complied.

Before trial, Pendergrass filed a motion to exclude, among other things, the

Google geo-location data showing Pendergrass’s whereabouts during the robberies.

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In support of the motion, Pendergrass asserted that the search-warrant application

improperly relied on evidence gathered from the illegally obtained LG phone,

including the fact that the Google username dontiezpendergrass@gmail.com was

linked to the LG cellphone. Pendergrass argued that the Google geo-location data

should all be excluded as fruit of the poisonous tree because it stemmed from the

unlawful search of the LG phone, and the evidence obtained from the phone had

since been suppressed.

The government opposed the motion, insisting it had an independent source

of information for Pendergrass’s email address, and it would have inevitably

discovered Pendergrass’s email address and obtained the resulting geo-location data

from Google, regardless.

The district court denied Pendergrass’s motion because it concluded that the

government had shown “a reasonable probability that the evidence in question would

have been discovered other than by the tainted source.” It also relied on the

government’s representation that it would have sought out the geo-location data

based on the email address associated with the Instagram account. As a result, the

government admitted the Google geo-location data at trial.

D. Motion to Continue Trial

On January 23, 2019, the district court granted a motion for continuance and

rescheduled the trial for June 17, 2019. A few days later, on January 28, 2019,

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Pendergrass moved to appoint new counsel. On February 4, 2019, noting that

Pendergrass was not financially able to employ counsel, the court granted the motion

and entered an order appointing new counsel.

On June 3, 3019, with only two weeks left until the start of trial, Pendergrass’s

attorney filed a motion to continue the trial. In the motion, counsel recounted that

she had recently received a K-9 report from the government. She believed that the

government intended to offer expert testimony at trial about whether the K-9

“alerted” near Pendergrass’s home. Counsel also mentioned photographs she

expected to be forthcoming and said the recordings of the 911 calls from the

robberies had recently been provided. Citing the need for an “opportunity to

properly investigate and prepare for the K-9 expert,” counsel moved for a

continuance of the trial. She was careful to explain that “the other late-produced

items would not keep the defense from being ready on June 17, 2019.”

At the pretrial conference on June 11, 2019, the district court heard oral

argument about the motion to continue and about whether the K-9 evidence was

admissible. The district court decided to exclude the K-9 evidence under Federal

Rule of Evidence 403. And since the K-9 evidence was no longer an issue, the

district court denied the motion to continue the trial.

E. Jury Trial

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As scheduled, the jury trial began on June 17, 2019. During voir dire,

prospective Juror 20 stated that she worked as a Coordinating Chief Community

Supervision Officer for the Department of Community Supervision. When asked

whether she was a probation officer, Juror 20 said, “Well, Community Supervision

Officer, Probation and Parole, Yes, Ma’am.” She also verified that she was POST

certified.6 Juror 20 agreed that, if she were selected as a juror, her job (and her POST

certification and employment in law enforcement) would not affect her ability to

judge the trial testimony fairly and impartially. Juror 20 also said she would not give

more weight to any law-enforcement witness simply because of her job.

When the district court asked if Pendergrass wished to strike any juror for

cause, Pendergrass argued that the court should strike Juror 20 as statutorily exempt

because she was a POST-certified law-enforcement officer. The district court

disagreed. It concluded Juror 20 was not exempt from jury service because she was

not a member of a police or fire department, as that term is understood in the

exemption from jury service for “members of the fire or police departments,” as set

forth in 28 U.S.C. § 1863(b)(6). 7 The district court also noted the jury office’s policy

in conducting its pre-screening process did not consider probation officers as exempt

6 A POST-certified person has received education in Peace Officer Standards and Training. 7 The district court determined that Juror 20 was not exempt under § 1863(c), either, because she was not a public officer in the executive branch of the United States government or of any state. 14 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 15 of 47

under § 1863. Because neither party struck her using a peremptory challenge, Juror

20 served as a member of the jury.

During trial, the government presented the testimony of twenty-seven

witnesses, including the robbery victims and the law-enforcement personnel who

responded to the robberies, processed the crime scenes, and conducted forensic

examinations of the evidence. As we have mentioned, the government also showed

the jury surveillance videos and still photos derived from them. A ballistics expert

testified regarding shell casings and cartridges found at three of the robbery scenes,

and the government presented the jury with cell-site and Google geo-location data

placing Pendergrass in the area of three of the robberies. Finally, the government

entered into evidence the items discovered during a search of Pendergrass’s home

and car.

Of particular relevance to this appeal is the testimony of Special Agent Winn.

Winn testified that his investigation into the armed robberies began in early 2017,

when he obtained cell phone “tower dumps.” These tower dumps provided him with

all the phone numbers that had accessed the closest cell towers to the robbery

locations around the times of the robberies. From the tower-dump results, Winn

identified two phone numbers that were near three of the robbery locations around

the time of the robberies. One of the phone numbers belonged to Pendergrass. Law

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enforcement ruled out the other because it belonged to someone who did not meet

the physical description of the robbers, based on surveillance video.

Next, Winn spoke about another potential suspect law enforcement had

eliminated from consideration—Quintarious Luke. Law enforcement originally

identified Luke after a traffic stop because he had a black-and-silver pistol. But

Luke’s physical appearance differed from those of the robbers and his phone records

placed him a significant distance from the robbery locations when the robberies took

place. Winn also testified that the Georgia Bureau of Investigation (“GBI”) analyzed

Luke’s gun, and ballistics analysis confirmed that it was not the same pistol used in

the Polo’s Taqueria, Discount Grocery, and Best Wings robberies.

Then the government turned to the video footage it was able to obtain. It

showed Winn screenshots from the admitted surveillance videos and asked him to

point out to the jury things he found to be significant, such as items a robber was

wearing. Pendergrass complains that Winn repeatedly stated that he had watched

the videos of the robberies many times and implied that the jury should therefore

believe his description of the video and screenshots.

Before beginning her cross-examination, defense counsel sought for the

district court to instruct the jury that it should disregard any of Winn’s testimony

that Pendergrass was the person depicted in the video of the robberies, and that the

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question was a matter for the jury alone to decide. The district court obliged,

instructing the jury as follows:

[T]o the extent that you heard testimony from Special Agent Winn that in his opinion Mr. Pendergrass was the person depicted in the surveillance video of the robberies, you are to disregard it. Whether Mr. Pendergrass is the person depicted in the videos is a matter for you, the jury, to decide. And that is just an instruction I wanted to give you at this time so there wouldn’t be any confusion.

At the conclusion of the trial, the jury found Pendergrass guilty of all charged

offenses, and the district court sentenced Pendergrass to a total of 552 months’

imprisonment. Pendergrass now appeals.

III.

Pendergrass raises six challenges to his conviction. He contends that he was

prejudiced by the district court’s denial of his motion to continue trial; he asserts that

the district court improperly declined to dismiss Juror 20 for cause; he takes issue

with certain testimony Winn gave; he argues that admission of the geo-location data

violated his Fourth Amendment rights; he contests the sufficiency of the evidence;

and finally, he urges us to find cumulative error stemming from any combination of

these alleged errors. We consider each claim in turn.

A. The district court did not abuse its discretion when it denied Pendergrass’s motion to continue the trial date.

Pendergrass argues that the denial of his motion to continue the trial date

essentially rendered meaningless his fundamental right to assistance of counsel 17 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 18 of 47

under the Sixth Amendment. In Pendergrass’s view, counsel lacked sufficient time

to prepare for trial. In support of this contention, Pendergrass notes that trial counsel

had been appointed only a few months prior to trial. He also complains that he was

not able to review all his discovery, so he did not fully realize the evidence against

him.

We are not persuaded. Trial courts are afforded “great latitude” with respect

to scheduling, and judges enjoy “broad discretion” in ruling on motions for

continuances. United States v. Garmany, 762 F.2d 929, 936 (11th Cir. 1985). We

review for abuse of discretion a district court’s denial of a motion to continue trial,

and the denial of such a request does not rise to error “unless it is arbitrary and

unreasonable and severely prejudices the moving party.” SEC v. Levin, 849 F.3d

995, 1001 (11th Cir. 2017); see also United States v. Valladares, 544 F.3d 1257,

1262 (11th Cir. 2008).

When a criminal defendant claims he did not have enough time to prepare for

trial, he must identify the relevant evidence he would have presented had the request

for a continuance been granted. United States v. Jeri, 869 F.3d 1247, 1257 (11th

Cir. 2017). We also consider several factors, including the “time available for

preparation, the likelihood of prejudice from denial, the accused’s role in shortening

the effective preparation time, the degree of complexity of the case, and the

availability of discovery from the prosecution.” Id. (quotation omitted).

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Here, Pendergrass has not pointed to any evidence he would have presented

if his request for a continuance had been granted. Plus, defense counsel stated she

sought the continuance to obtain time to prepare for the K-9 evidence the

government planned to introduce at trial. But the district court eliminated that

problem when it excluded the K-9 evidence. And significantly, counsel conceded

“the other late-produced items would not keep the defense from being ready on June

17, 2019.”

True, during the pretrial conference, Pendergrass asserted for the first time

that he had not been able to fully review the original discovery because he had

inadequate access to library time at the jail. But the district court remedied this

problem as well, directing that Pendergrass receive additional time to review his

discovery.

Under the circumstances, the district court acted well within its discretion

when it denied the motion for a continuance. Pendergrass had roughly two years to

prepare for his trial and did not point to any evidence that would have been presented

if the continuance had been granted. And although his trial counsel came into the

case late in the game, that was because Pendergrass twice sought new counsel. Even

so, his new counsel had about four months to prepare for trial, and she told the court

that she would be ready in the absence of the K-9 evidence. The evidence presented

at trial also was not voluminous or complicated. In sum, the district court acted well

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within its discretion when it denied the motion to continue. See Valladares, 544

F.3d at 1262 (citing United States v. Gibbs, 594 F.2d 125, 127 (5th Cir. 1979)

(district court did not abuse its discretion when finding the defendant had ample time

to prepare his defense, and he had “point[ed] to no critical documents that might

have been uncovered with additional time and whose absence prejudiced or impaired

his defense.”)).

B. The district court did not err or abuse its discretion in declining to dismiss Juror 20 for cause.

Next, Pendergrass contends the district court erred by refusing to excuse Juror

20 from service under 28 U.S.C. § 1863(b)(6), because of her employment. We

review for abuse of discretion a district court’s decision to strike, or to refuse to

strike, a prospective juror for cause. United States v. Abraham, 386 F.3d 1033, 1035

(11th Cir. 2004) (per curiam). But since this issue also raises a question of statutory

interpretation, we review that matter de novo. See United States v. St. Amour, 886

F.3d 1009, 1013 (11th Cir. 2018) (per curiam).

Title 28 U.S.C. Section 1863 requires each district court to create a plan for

random jury selection. Under the statute, certain persons must be exempted from

jury service, based on their employment. As relevant here, § 1863 provides that

“members of the fire or police departments of any State, the District of Columbia,

any territory or possession of the United States, or any subdivision of a State, the

District of Columbia, or such territory or possession” are “barred from jury service 20 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 21 of 47

on the ground that they are exempt.” 28 U.S.C. § 1863(b)(6)(B). Pendergrass argues

that Juror 20 fell within this exemption because she worked for the Department of

Community Supervision.

Although Pendergrass acknowledges the statute does not define the phrase

“members of . . . police departments,” he relies on Georgia law to piece together

support for his argument that Juror 20 falls into this category. We walk through

Pendergrass’s analysis.

He first notes that under Georgia law, a person must be POST certified to

serve as a law-enforcement officer. Appellant’s Brief at 37 (citing https://www.

gapost.org/about.html). As we have noted, Juror 20 was POST certified.

Pendergrass also observes that although O.C.G.A. § 35-8-2(8)(A) does not

refer to police officers, it defines a “peace officer” as someone who is “vested either

expressly by law or by virtue of public employment or service with authority to

enforce the criminal or traffic laws through the power of arrest and whose duties

include the preservation of public order, the protection of life and property, and the

prevention, detection, or investigation of crime.” And he notes a person who is

authorized to exercise the power of arrest and who is employed by the Department

of Community Supervision—like Juror 20—is expressly designated as a “peace

officer.” See O.C.G.A. § 35-8-2(8)(C). Georgia law also defines a “[l]aw

enforcement unit” to include the Department of Community Supervision. O.C.G.A.

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§ 35-8-2(7)(C). Pendergrass further points out that, among other duties, the

Department of Community Supervision supervises certain defendants and

administers and enforces laws, rules, and regulations relating to probation and

parole supervision. See O.C.G.A. § 42-3-3(a).

Putting all this together, Pendergrass asserts that these circumstances make

the Department of Community Supervision a law-enforcement unit of the State of

Georgia, the equivalent of a police department at the state level. He emphasizes

that Juror 20 was POST certified and that she informed the court that she has

testified against criminal defendants at trial, which Pendergrass characterizes as a

“key function of police work.” So Pendergrass contends Juror 20 was required

under § 1863(b)(6)(B) to be exempted from service because she was a member of

a police department.

In further support of his position, Pendergrass argues that construing §

1863(b)(6)(B) to exempt only employees of entities labeled as “police departments”

would allow officers of a wide array of entities that are clearly encompassed by the

purpose of the statute to serve as jurors. For instance, Pendergrass contends,

sheriff’s deputies, Georgia State Patrol officers, Georgia Bureau of Investigation

agents, and others similar to them would all fall outside the district court’s

interpretation of § 1863(b)(6)(B).

We disagree. We begin “where courts should always begin the process of

22 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 23 of 47

legislative interpretation, and where they often should end it as well, which is with

the words of the statutory provision.” Harris v. Garner, 216 F.3d 970, 972 (11th

Cir. 2000) (en banc). But when considering the plain language of the text, we bear

in mind that “[a] provision that may seem ambiguous in isolation is often clarified

by the remainder of the statutory scheme.” Koons Buick Pontiac GMC, Inc. v. Nigh,

543 U.S. 50, 60 (2004) (quotation omitted). Where the language of the statute is not

entirely clear, we also consider the canons of statutory construction. CBS Inc. v.

PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir. 2001).

Here, we need go no further than the plain language of the statute, which we

find to be unambiguous. Significantly, § 1863(b)(6)(B) uses the term “members of

. . . police departments”—not a broader catchall term like “members of law

enforcement” or “individuals who are POST certified.” True, the statute does not

define “police department,” but that term is fairly self-evident. Black’s Law

Dictionary defines “police department” as “[t]he official local law-enforcement

organization in a particular town, city, or area” or, “[t]he building in which this

organization has its headquarters or a satellite office.” Police Department, Black's

Law Dictionary (11th ed. 2019). The Merriam-Webster Dictionary defines “police

department” as “a governmental department concerned with the administration of

the police force.” Police Department, Merriam-Webster Dictionary, https://www.

merriam-webster.com/dictionary/police%20department (last accessed March 23,

23 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 24 of 47

2021). In turn, “police force” means “a body of trained officers entrusted by a

government with maintenance of public peace and order, enforcement of laws, and

prevention and detection of crime.” Police Force, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/police%20force (last accessed

March 23, 2021).

Taking these definitions together, the plain language of the statute means that

to be excluded from jury service under § 1863, a person must in function be a police

officer, not a member of any organization that could fall under the broad umbrella

of law enforcement. We “are not at liberty to rewrite the statute passed by Congress

and signed by the President.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139

S. Ct. 524, 528 (2019). Significantly, the Georgia statute that lists the duties assigned

to Juror 20 omits quintessential functions of police officers, as that term is commonly

understood: the prevention and detection of crime and maintenance of peace and

order.

We reject Pendergrass’s argument that reading the statute in this way excludes

police officers whose organizational names do not contain the term “police

department.” The statute does not require the term to be incorporated into the

organization’s name; it demands only that the individual be a “member” of what is

functionally a police department. Clearly, individuals who are sheriff’s deputies or

members of the Georgia State Patrol qualify as members of a police department

24 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 25 of 47

because of their work responsibilities. The duties individuals perform matter, not

the titles of the agency to which they belong.

We have also observed that “allowing police officers to perform their duties

without the interruption of jury service is good for the community.” United States

v. Terry, 60 F.3d 1541, 1544 (11th Cir. 1995). Indeed, the prevention and detection

of crime and maintenance of peace and order are essential functions. And while

DCS officers also perform important and significant duties such as supervising the

state’s probationers and parolees, as well as some juveniles, they do not regularly

render the same types of bare-necessity services as police officers. See O.C.G.A. §

42-3-3. Unlike police officers, DCS officers do not respond to 911 calls, enforce

criminal and traffic laws, patrol the streets, and make arrests on a daily basis outside

those necessary to their supervisory duties.

Our conclusion aligns with that of the Tenth Circuit. It rejected a challenge

similar to the one Pendergrass raises. See United States v. McCullah, 76 F.3d 1087,

1099 (10th Cir. 1996). There, McCullah contended that the prospective juror, a

prison guard at a state minimum-security prison, should have been stricken for cause

under § 1863(b)(6)(B) because, in McCullah’s view, the juror’s job as a prison guard

qualified him as a “member[] of . . . [a] police department[].” In support of his

argument, McCullah relied on Oklahoma statutes that gave prison guards the powers

of “peace officers” and that defined “police officer” and “peace officer” comparably.

25 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 26 of 47

Id. at 1099. The Tenth Circuit determined that McCullah’s interpretation of §

1863(b)(6)(B) was inconsistent with the plain language of the statute, which clearly

refers to only the narrow category of “police officers.” Id. Although the Tenth

Circuit recognized that prison guards had some police-like duties, it held that they

were not members of the police department. Id. Had Congress intended to exclude

a broader class of law-enforcement employees from jury service, the court reasoned,

it would have simply used a broader term such as “law enforcement officer.” Id.

We agree. Juror 20 did not qualify as a “member[] of . . . [a] police

department” under § 1863(b)(6)(B). And because Juror 20 stated that she would be

fair and impartial in her assessment of the evidence and promised not to give more

weight to any law-enforcement witness simply because of her job, the district court

did not abuse its discretion in declining to reject Juror 20 for cause.

C. Even assuming without deciding that the Google geo-location data should have been excluded as “fruit of the poisonous tree,” any error in admitting that evidence was harmless beyond a reasonable doubt.

Pendergrass contends the admission of the Google geo-location data violated

his Fourth Amendment rights because it constituted “fruit of the poisonous tree.”

The Fourth Amendment protects against unreasonable searches and seizures. When

a court determines that a violation has occurred, under appropriate circumstances, it

excludes evidence garnered as a result of the breach. See Herring v. United States,

555 U.S. 135, 139 (2009). This exclusionary rule extends beyond the direct results

26 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 27 of 47

of police misconduct to “evidence derived from the illegal conduct, or fruit of the

poisonous tree.” United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th Cir.

1990) (quotation omitted).

Here, Pendergrass emphasizes the district court’s suppression of the LG phone

and its contents because of the phone’s unlawful seizure. He claims the court also

should have prohibited the Google geo-location data because law enforcement

discovered Pendergrass’s Gmail address on the excluded LG phone, and the Gmail

address was the information that prompted the July 2017 search warrant to Google.

In Pendergrass’s view, the government did not demonstrate the applicability

of an exception to the exclusionary rule because it did not actively pursue leads that

would have led to the Google geo-location data before the illegal seizure of the LG

phone. See United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984). For that

reason, Pendergrass argues the district court erred in concluding that the government

established the inevitable-discovery exception to the fruit-of-the-poisonous-tree

doctrine. He adds that the independent-source exception was not satisfied because

the district court did not make a finding on subjective intent. See United States v.

Barron-Soto, 820 F.3d 409, 414 (11th Cir. 2016).

We assume without deciding that the district court erred in allowing the

admission of the Google geo-location data during trial because it amounted to fruit

of the poisonous tree, and no exception applied. Nevertheless, Pendergrass is not

27 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 28 of 47

entitled to a vacatur of his conviction because any error was harmless in the shadow

of the overwhelming evidence against Pendergrass with respect to the three

robberies in which the government presented geo-location data.

The harmless-error rule applies to many constitutional errors, including

violations of the Fourth Amendment. See United States v. Roy, 855 F.3d 1133, 1167-

68 (11th Cir. 2017). A constitutional error is harmless “if the government proves

beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” United States v. Pon, 963 F.3d 1207, 1227 (11th Cir. 2020)

(citation and internal quotation marks omitted). We have explained that that standard

is satisfied if the error is “unimportant in relation to everything else the jury

considered on the issue in question, as revealed in the record.” Id. (citation and

internal quotation marks omitted). To assess this, we examine “the facts, the trial

context of the error, and the prejudice created thereby as juxtaposed against the

strength of the evidence of defendant’s guilt.” United States v. Reed, 700 F.2d 638,

646 (11th Cir. 1983) (citation and internal quotation marks omitted).

Here, the jury heard Google geo-location evidence for only three of the five

robberies: Discount Grocery, Polo’s Taqueria, and Best Wings. The weight of the

evidence against Pendergrass relating individually to each of the Discount Grocery

and Polo’s Taqueria robberies was crushing. And as for the evidence supporting

28 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 29 of 47

Pendergrass’s conviction on the Best Wings robbery, that evidence, too, was

formidable, especially when we account for all the evidence in this case.

We begin by reviewing the evidence in the Discount Grocery robbery. For

starters, Pendergrass’s DNA was found at the scene. Indeed, an expert testified that,

based on an analysis of the blood droplets recovered from the store’s floor, the DNA

found was 690 septillion times more likely to be Pendergrass’s than that of an

unknown person. Plus, cell-tower data showed Pendergrass in the vicinity of the

robbery at the relevant time. Even without the Google geo-location data, then, these

two pieces of evidence placed Pendergrass at the scene.

But that’s not all. The three shell casings found on the floor of the grocery

store showed they were cycled through the same Smith and Wesson .40-caliber gun

used in the Polo’s Taqueria and Best Wings robberies. And video surveillance and

testimony established that a robber in all five crimes was a tall, left-handed man,

who brandished a black-and-silver pistol and covered his face from the nose down.

It also showed that the Discount Groceries robber wore a single-strap cross-body

backpack and white gloves. Pendergrass admitted he was left-handed, and from

Pendergrass’s residence, law enforcement recovered a backpack like the one in the

video. As for the white gloves, they made an appearance on the left-handed robber

in the videos from three of the other robberies as well.

This avalanche of evidence easily establishes Pendergrass’s guilt in the

29 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 30 of 47

Discount Grocery robbery beyond a reasonable doubt. We confidently conclude that

the admission of the Google geo-location data had no substantial influence on the

outcome of the trial.

Nor did the Google geo-location data have any more of a substantial influence

on the jury’s verdict as it pertained to the Polo’s Taqueria robbery. First, cell-tower

data placed Pendergrass’s phone in the area at the time of the robbery. Second, as

we have noted, a bullet cartridge found at the scene had been cycled through the

same gun used during the Discount Grocery and Best Wing robberies. Third, like

with the other robberies, the suspects covered their faces in the same way and carried

guns. Fourth, a chrome-barreled long gun with a scope on it that was later found at

Pendergrass’s residence matched the description of the gun that one of the robbers

carried, and Pendergrass admitted the long gun was his.

Fifth, as with the Discount Grocery robbery, video surveillance and testimony

concerning the Polo’s Taqueria robbery established that one of the robbers was a

tall, left-handed man, who brandished a black-and-silver pistol. Sixth, video showed

the robber wearing a single-strap crossbody backpack like the one recovered from

Pendergrass’s residence. Seventh, video also captured that robber wearing white

gloves like the ones worn in three of the other robberies. And eighth, the robber

wore a red shirt under a long-sleeved black shirt with a distinctive white pattern. As

with the rifle and cross-body backpack, the black-and-white shirt was found at

30 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 31 of 47

Pendergrass’s house, and he admitted it was his.

This sea of evidence against Pendergrass requires us to conclude beyond a

reasonable doubt that the admission of the Google geo-location data had no

substantial influence on the outcome of the trial. Any error in admitting the Google

geo-location was therefore harmless.

Finally, we turn to the Best Wings robbery. But because Pendergrass

challenges his conviction on that one on sufficiency-of-the-evidence grounds as well

as on the admission of the Google geo-location data, we address it below.

Nevertheless, we conclude that the geo-location data had no substantial effect on the

verdict because, for the reasons we explain in Section III.D, the other evidence

against Pendergrass was quite strong and because unchallenged cell-site data also

placed Pendergrass in the vicinity of the robbery. In sum, we are satisfied beyond a

reasonable doubt that any error in admitting the geo-location data was harmless, as

the other evidence against Pendergrass handily established his guilt.

D. The evidence sufficiently supported Pendergrass’s convictions on all five robberies.

Pendergrass urges that the government failed to present sufficient evidence to

sustain his convictions on the China Star, Bonita Coin Laundry, and Best Wings

robberies. We disagree. Particularly when viewed together, the evidence of all the

robberies establishes a modus operandi and a pattern that support Pendergrass’s

convictions for each robbery. 31 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 32 of 47

We review de novo the sufficiency of the evidence to support a conviction

and the denial of a Rule 29, Fed. R. Crim. P., motion for judgment of acquittal.

United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). In conducting our

review, though, we consider all evidence in the light most favorable to the

government and draw all reasonable inferences in favor of the jury’s verdict. United

States v. Grzybowicz, 747 F.3d 1296, 1304 (11th Cir. 2014). After applying these

principles, we determine “whether a reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” Gamory, 635 F.3d at 497 (quotation omitted).

Reasonable inferences, drawn from circumstantial evidence, are sufficient to support

a guilty verdict. See United States v. Martin, 803 F.3d 581, 587-88 (11th Cir. 2015).

Credibility questions are for the jury, and we assume the jury made all credibility

determinations in support of the verdict. United States v. Jiminez, 564 F.3d 1280,

1285 (11th Cir. 2009).

We conclude this case falls squarely under our decision in United States v.

Bowers, 811 F.3d 412 (11th Cir. 2016). There, like here, the government tried

multiple robberies in a single case. Id. at 416-422. To support its case, the

government presented modus operandi evidence, as well as physical evidence

connecting some of the robberies. Id. The defendant challenged the sufficiency of

the evidence, and we affirmed, holding that evidence of the modus operandi and

32 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 33 of 47

other recurring patterns among the eight robberies in that case permitted the jury to

conclude that the same person committed all eight crimes. Id. at 424, 430.

Here, too, evidence of the modus operandi and other evidentiary patterns

allowed the jury to find that Pendergrass executed all five robberies, including the

three challenged as lacking sufficient evidence. A summary chart of the evidence

(exclusive of the Google geo-location data) demonstrates the many similarities

among the five robberies:

Characteristic China Star Polo’s Discount Bonita Best Taqueria Grocery Coin Wings Laundry Occurred at closing or later at night X X X X X Mom-and-Pop-type shop X X X X X Taller robber X X X X X Who was left-handed X X X X X Who brandished silver-and-black X X X X X pistol And who covered his face X X X X X And who wore a black shirt with a X X distinctive white design (like one recovered at Pendergrass’s residence and which he admitted he owned) And wore red under- or outer-shirt X X X X layer And wore a single-strap, cross-body X X backpack (like one recovered at Pendergrass’s residence) And wore white gloves X X X X Shot or shots fired X X X Casings or bullets recovered from X X X Smith & Wesson .40-caliber gun Casings recovered matched other X X X casings recovered at other charged robberies Cell-tower dump data showed phone X X X associated with Pendergrass in the area

33 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 34 of 47

Rifle with distinctive chrome barrel X and scope (like one recovered at Pendergrass’s residence and which he admitted he owned), used by another robber Pendergrass’s DNA recovered from X scene

We conclude that a reasonable jury could (and did) find beyond a reasonable

doubt that these patterns were not coincidence but rather evidence that the same

person committed all five robberies. Similar modus operandi evidence demonstrated

that all the businesses targeted were mom-and-pop establishments (with China Star

and Discount Groceries even located in the same strip mall); the robberies all took

place at the closing of the business or later; all five robberies were committed in a

short period (a span of eight weeks); the robbers covered their faces and brandished

guns in the same way in all the robberies; one robber carried a silver-and-black pistol

in his left hand in all the robberies; in four of the five robberies, that same robber

wore a red shirt as either an under or outer layer; and in four of the five robberies,

that same robber wore white gloves.

Plus, Pendergrass was firmly linked to the string of robberies in significant

ways: his DNA was found at one scene; cell-tower evidence connected Pendergrass

with three of the crimes; at Pendergrass’s residence, law enforcement found a black

shirt with a distinctive white pattern like the piece of clothing a robber wore in both

the China Star and Polo’s Taqueria robberies, and Pendergrass admitted the item

was his. Law enforcement also recovered a bullet or its casings from the Best Wings

34 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 35 of 47

scene that matched those found at the sites of Polo’s Taqueria and Discount Grocery

(where Pendergrass’s DNA was recovered) and was cycled through the same gun

used at all three locations.

When modus operandi evidence supports an inference that the same person

committed multiple crimes, a jury can consider identity evidence from other

robberies. See Bowers, 811 F.3d at 429. Here, even without accounting for other

evidence that may pertain to the three robberies for which Pendergrass challenges

his convictions, through repeating patterns in all five robberies, the overwhelming

evidence that Pendergrass committed at least two of the other robberies (Discount

Grocery and Polo’s Taqueria) permits the inference that he committed the three

challenged robberies as well. And that is especially the case in the Best Wings

robbery, where, as we have noted, law enforcement recovered a bullet casing that

was cycled through the same gun the robber used at Discount Grocery and Polo’s

Taqueria. Id.

Pendergrass tries to avoid this result by suggesting the Bonita Coin Laundry

robbery was inconsistent with the other robberies because customers and employees

were locked in the bathroom. We disagree.

First, as we have suggested, the evidence from the Bonita Coin Laundry

robbery follows many of the material patterns that the other four robberies did. The

robber from the Bonita Coin Laundry was taller, brandished a black-and-silver pistol

35 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 36 of 47

in his left hand, and covered his face from his nose down in the same way that a

robber in all the other robberies did. He also wore white gloves like the left-handed,

black-and-silver-pistol-wielding robber in three other robberies, including the Polo’s

Taqueria and Discount Grocery robberies. And he wore a red shirt like that same

robber in three other robberies, including the Polo’s Taqueria robbery.

Second, the forcefulness the robbers displayed during the Bonita Coin

Laundry robbery resembled that of the robbers in all the other incidents. The robbers

in the Polo’s Taqueria robbery took Morales by the arm and forced him inside where

the safe was located. In the China Star incident, robbers forced the owner and an

employee back into the restaurant. And in the Best Wings robbery, robbers told a

patron and employee to return inside and repeatedly demanded a key to the safe. As

for the Discount Groceries robbery, one of the robbers forced Joseph to his knees by

pistol-whipping him, and then the taller robber shot Joseph when he tried to reach a

gun. The robbers’ actions during the Bonita Coin Laundry robbery in rushing in and

forcing the owners and patrons into the bathroom was just more of that same

forcefulness exhibited in all five robberies.

In sum, the mosaic and patterns of evidence firmly tie all five robberies to

Pendergrass and sufficiently support his convictions on each robbery.

E. Special Agent Winn’s testimony does not warrant vacatur of the convictions.

36 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 37 of 47

Pendergrass also challenges Special Agent Winn’s testimony on three

grounds. First, he argues that large portions of it constituted hearsay. Second, he

asserts that it violated his rights under the Confrontation Clause. And third, he

contends that it amounted to improper opinion testimony. Because Pendergrass did

not object to the admission of this testimony during trial, we review for plain error.

See Hawkins, 934 F.3d at 1264.

The admission of evidence constitutes plain error when the evidence was “so

obviously inadmissible and prejudicial that, despite defense counsel’s failure to

object, the district court, sua sponte, should have excluded the evidence.” United

States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008) (quotation omitted). To

establish plain error, Pendergrass must satisfy three conditions. First, he must show

that error occurred, and he did not intentionally forfeit or abandon the error.

Hawkins, 934 F.3d at 1264. Second, he must demonstrate that the error was plain,

meaning “clear or obvious.” Id. Third, he must prove the error affected his

substantial rights. Id. If Pendergrass can meet these conditions, we may exercise

our discretion to notice and correct a forfeited error, but only if the error “seriously

affected the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quoting United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018)). This

test is rigorous but not impossible. Id.

37 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 38 of 47

We begin with the hearsay challenge. Pendergrass contests Winn’s

testimony concerning (1) the contents of the tower-dump records, (2) others’

statements about potential suspect Quintarious Luke, (3) the statements of those

who said surveillance video was not available, and (4) the statements of

Pendergrass’s girlfriend and her mother that Pendergrass lived in the basement of

their home at 1044 Wenham Lane.

Except for the last category, none of the challenged statements were hearsay

because, as we explain below, they were not offered for the truth of the matter

asserted. See Fed. R. Evid. 801(c). Under our binding case law, statements by out-

of-court witnesses to law enforcement may be admitted as non-hearsay if they help

explain the course of a complex investigation, and the danger of unfair prejudice

caused by the use of the statements does not substantially outweigh the probative

value of the evidence. Jiminez, 564 F.3d at 1288; see also United States v. Elysee,

No. 18-14214, 2021 WL 1310551, *25 (11th Cir. Apr. 8, 2021) (“the government in

a criminal case may in some circumstances introduce out-of-court statements

through investigative officers either (1) to explain the course of a complex

investigation or (2) to rehabilitate officers after the defense has impugned their

motives or behavior in the investigation.”). The first three categories of Winn’s

challenged testimony fall under this rule because that evidence showed why Winn

focused his investigation on Pendergrass and excluded other potential suspects

38 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 39 of 47

during his investigation. In this regard, they explain the course of a complex

investigation and were not introduced for the truth of the matter asserted.

For example, the government did not offer the testimony about the

unavailability of other surveillance videos to prove the accuracy of the statements.

Indeed, if offered for the truth of the matter, that type of evidence would not make

it more or less likely that a particular suspect committed or did not commit the

robberies. Similarly, the testimony about Quintarious Luke—such as his physical

description and use of tower dump data—was not offered to establish the

truthfulness of those statements. Rather, with both categories of information, the

government sought to show the steps Winn took during his investigation. Along

the same lines, the government relied on this evidence to refute any defense claims

that the government had not investigated all leads and had not obtained all evidence.

Winn’s testimony about Quintarious Luke also referred to ballistics—that

GBI determined Luke’s gun was not used during the robberies. The testimony

perhaps implicates the ballistics testing performed on the bullet casings and cartridge

found at the crime scenes. But during the trial, other witnesses verified the

authenticity of those ballistics records. For instance, GBI forensics expert Weitzel

performed a microscopic comparison of the shell casings and cartridge. He prepared

a report on his findings. And during trial, Weitzel testified that the three shell casings

found at Discount Grocery were shot from the same gun as the one casing found at

39 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 40 of 47

Best Wings. He also testified that the bullet cartridge found at Polo’s Taqueria was

ejected from the same gun as that used during the Discount Grocery and Best Wings

shootings.

With respect to the cell-site data, FBI Special Agent Carman testified about

how that data was gathered and how it was read and reported. During his testimony,

he described how Pendergrass’s phone had “pinged” off certain cell towers near the

robbery locations of Polo’s Taqueria, Discount Grocery, and Best Wings. Records

reflecting this substantive data were admitted into evidence, and Pendergrass did not

object. So when Agent Winn discussed the records, they were already in evidence,

and regardless, he used them for the purpose of explaining his investigative actions.

As for Pendergrass’s final hearsay challenge—to his testimony that

Pendergrass’s ex-girlfriend told police that Pendergrass lived in the basement of her

home at 1044 Wenham Lane—we agree with Pendergrass that that statement

qualifies as hearsay. Winn asserted it for the truth of the matter: that Pendergrass

lived at the Wenham Lane address. But that does not warrant reversal here.

That information was also established through other means. And in any event,

even assuming without deciding that the admission of this evidence could rise to the

level of plain error, no reasonable probability of change in the outcome of trial exists.

The government admitted an exhibit from T-Mobile showing subscriber information

for Pendergrass. And that documentation, to which Pendergrass did not object,

40 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 41 of 47

showed Pendergrass lived at 1044 Wenham Lane. Besides that, law-enforcement

officers conducting surveillance also saw Pendergrass arriving at and leaving from

the residence. Plus, Pendergrass himself admitted that his shirt and other items were

located at the address.

We turn next to Pendergrass’s Confrontation Clause challenge. This claim,

too, lacks merit. As we did with the hearsay challenge, we review this claim for

plain error since Pendergrass did not object at trial to a violation of the Confrontation

Clause.

The Confrontation Clause prohibits the admission of out-of-court statements

that are testimonial unless the declarant is unavailable and the defendant had a

previous opportunity to cross-examine the declarant. See Crawford v. Washington,

541 U.S. 36, 51–52 (2004). Our decision in Jiminez, however, clarified that the

Confrontation Clause “prohibits only statements that constitute impermissible

hearsay” because “[t]he Clause . . . does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.” Jiminez, 564 F.3d

at 1286-87 (quoting Crawford, 541 U.S. at 59 n. 9).

Because the first three categories of challenged testimony do not qualify as

hearsay, Pendergrass’s Confrontation Clause challenge with respect to them

necessarily fails, too. Pendergrass asserts that United States v. Charles, 722 F.3d

1319 (11th Cir. 2013), requires a different result. We disagree. True, we did note

41 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 42 of 47

in Charles that “a proper Confrontation Clause analysis does not begin or end with

a determination of whether a statement constitutes ‘impermissible hearsay.’” Id. at

1328 n.10. But we explained that the Confrontation Clause analysis “first requires

a determination of whether the declarant’s statement is testimonial,” i.e. a

declaration offered for the purpose of proving some fact to be used at trial.” Id.

Only if that is the case does a Confrontation Clause issue arise. See id.

Here, though, we have explained that the challenged categories did not

constitute “hearsay” because they were not offered for the truth of the matters

asserted nor to prove Pendergrass’s guilt or any other fact to be used at trial. Cf.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313–14 (2009) (forensic laboratory

report indicating that substance was cocaine was “testimonial” for purposes of the

Confrontation Clause) and Bullcoming v. New Mexico, 564 U.S. 647, 663-65 (2011)

(certification as to the results of a blood-alcohol test was “testimonial” for

Confrontation Clause purposes). So by definition, they were not “testimonial.” Yet

the “primary object” of the Sixth Amendment is to limit “testimonial hearsay.”

Crawford, 541 U.S. at 53. Because the statements challenged here are not

“testimonial hearsay,” the Confrontation Clause was not triggered, so we do not

determine whether the relevant witnesses were available to testify or whether

Pendergrass had an opportunity to cross-examine them.

42 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 43 of 47

But even assuming the district court did err in allowing Winn’s challenged

testimony, we find no plain error because no reasonable probability exists that any

error had a substantial effect on the jury’s verdict. See United States v. Arbolaez,

450 F.3d 1283, 1291-92 (11th Cir. 2006) (per curiam). As we have discussed in

Sections III.C and D, the government introduced a substantial amount of evidence

showing that Pendergrass committed the robberies.

As for the evidence from Pendergrass’s girlfriend, even assuming without

deciding that the admission of that evidence could constitute plain error, Pendergrass

cannot show that its admission violated his substantial rights, since the same

evidence came in admissibly.

We also reject Pendergrass’s argument his convictions must be vacated

because Winn offered improper opinion testimony during trial and the government

inappropriately used him as a summary witness to review evidence and draw

inferences for the jury. As with Pendergrass’s other challenges to Winn’s testimony,

Pendergrass did not object on this basis, either, during trial. For that reason, we

again review for plain error. None exists here, and Pendergrass’s reliance on our

decision in United States v. Hawkins, 934 F.3d 1251 (11th Cir. 2019), fails.

In Hawkins, the government presented the agent there as an expert, but the

agent also testified to matters of fact. As a result, that agent’s testimony crossed

back and forth between factual testimony and expert opinion. In addition, the

43 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 44 of 47

Hawkins agent provided speculative interpretative commentary on the meanings of

entire conversations, as opposed to construing just drug code words used during the

conversations and for which he served as an expert.

Here, though, the government did not admit Winn as an expert, so no danger

of confusion between factual and expert-opinion testimony existed. Winn also did

not purport to have expert knowledge of the subtext of entire conversations

consisting of everyday language, like the agent in Hawkins did. Rather, Winn simply

reviewed the evidence presented, explaining to the jury how he linked Pendergrass

to the robberies. His testimony identified the overlapping evidence between the

robberies and the robbers’ overall modus operandi. And significantly, Winn’s

testimony was supported by surveillance videos, still pictures, tangible evidence

found at Pendergrass’s home, ballistics, cell-site data, and other witness testimony.

This case does not involve improper interpretation of evidence that impeded

or invaded the function of the jury. Instead, it involves the synthesis of a large

volume of already-admitted evidence. And even assuming some of Winn’s

testimony strayed into the realm of improper interpretation, he was neither the sole

nor the primary witness in the case. Rather, the government presented twenty-seven

witnesses at trial over five days, and many witnesses testified to the same facts that

Winn did. That distinguishes this case from Hawkins in yet another way, since the

agent there testified for more than half the trial.

44 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 45 of 47

We also reject Pendergrass’s complaint about Winn’s testimony on the

identity of the person in the surveillance videos. To be sure, Winn did point out the

robbers’ physical features and did say they matched those of the defendant. But in

any event, the district court instructed the jury, “Whether Mr. Pendergrass is the

person depicted in the videos is a matter for you, the jury to decide.” We assume

juries follow the court’s instructions. United States v. Almanzar, 634 F.3d 1214,

1222 (11th Cir. 2011). Beyond that, during a sidebar, defense counsel explicitly

stated she had no objection to the government’s asking Winn why he considered

Pendergrass a suspect or noting that the suspect was left-handed, tall, and athletic.

So any errors in these regards are forfeited, in any event. See United States v.

Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (invited error “stems from the

common sense view that where a party invites the trial court to commit error, he

cannot later cry foul on appeal.”).

For all these reasons, Pendergrass’s challenges to Winn’s testimony fail.

F. Even assuming error, cumulative error here does not warrant vacatur of the convictions.

Last, we reject Pendergrass’s contention that the cumulative effect of the

alleged pre-trial and trial errors we have discussed rendered his trial fundamentally

unfair. We review de novo the cumulative impact of trial errors. United States v.

Dohan, 508 F.3d 989, 993 (11th Cir. 2007). The cumulative-error doctrine calls for

reversal of a conviction if, in total, the non-reversible errors result in a denial of the 45 USCA11 Case: 19-13681 Date Filed: 04/22/2021 Page: 46 of 47

constitutional right to a fair trial. United States v. Reeves, 742 F.3d 487, 505 (11th

Cir. 2014).

Our first step in a cumulative-error analysis calls for us to evaluate each claim

independently. United States v. Margarita Garcia, 906 F.3d 1255, 1280 (11th Cir.

2018). Then we survey “the trial as a whole” in assessing whether a defendant

received a fundamentally fair trial. United States v. Ladson, 643 F.3d 1335, 1342

(11th Cir. 2011). No cumulative error exists where a criminal defendant cannot

establish that the combined errors affected his substantial rights. United States v.

Foley, 508 F.3d 627, 638 (11th Cir. 2007). A defendant’s substantial rights are not

affected if “properly admitted evidence sufficiently established [his] guilt.” United

States v. Adams, 74 F.3d 1093, 1100 (11th Cir. 1996).

Here, the whole is not greater than the sum of the parts. Even assuming that

the admission of the geo-location data was erroneous, and even assuming errors in

the admission of some of Winn’s testimony, we conclude that Pendergrass has not

shown his substantial rights were affected by the aggregation of alleged errors. As

we have reviewed in detail, the evidence against Pendergrass formidably

demonstrated his guilt with respect to the charged offenses. See Adams, 74 F.3d at

1100 (substantial rights not affected if sufficient evidence of guilt exists).

Pendergrass received a fundamentally fair trial, so his convictions must be affirmed.

IV.

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For the foregoing reasons, we affirm Pendergrass’s convictions on all counts.

AFFIRMED.