NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 17-3364 ____________
UNITED STATES OF AMERICA
v.
MARQUIES BROWN,
Appellant ____________
On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-16-cr-00016-001) District Judge: Honorable Richard G. Andrews ____________
Submitted November 6, 2018 Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.
(Filed: November 7, 2018)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.
Marquies Brown appeals his judgment of conviction, following a jury trial, for
knowing possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1). We
will affirm.
Brown makes three arguments on appeal, all of which relate to evidence admitted
at trial. In his first two assignments of error, Brown claims the District Court abused its
discretion when it admitted lay testimony. In his final challenge, he contends the
evidence was insufficient to convict him of possessing the firearm. We address each
argument in turn.
I1
In his principal argument, Brown challenges the testimony of Lieutenant
McGillan, who stated that the firearm in question “appeared to be dirty, and had fresh dirt
and grass kind of in the grooves consistent with actually being tossed or thrown in then
[sic] area where it was located.” App. 377. Brown claims this testimony should have been
excluded because it was not helpful, embraced the ultimate issue, and was based on
specialized knowledge within the scope of Rule 702. We disagree.
We begin by noting that although the Government bore the burden of satisfying
Rule 701, the modern trend is away from skepticism of lay opinion evidence and “toward
greater admissibility.” United States v. Fulton, 837 F.3d 281, 291 (3d Cir. 2016) (quoting
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 2 United States v. Stadtmauer, 620 F.3d 238, 262 (3d Cir. 2010)). We will not reverse a
district court’s decision to admit lay opinion testimony unless “no reasonable person
would adopt [its] view.” United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)
(quoting Ansell v. Greene Acres Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003)).
The record in this case leaves us unconvinced that Brown has met this difficult
standard. McGillan’s testimony was helpful to the factfinder because it provided details
the jury could not determine from the photos of the gun admitted into evidence at trial.
His observations were based on his first-hand knowledge after standing next to the gun
for at least ten minutes. They included how deeply the mud and grass were impressed in
the gun’s surface, which could not be determined from a two-dimensional photo. The
District Court therefore had a reasonable basis for concluding McGillan’s testimony
would help the jury.
Contrary to Brown’s argument, McGillan’s testimony did not embrace the
ultimate issue—whether Brown possessed the firearm—because his testimony reached no
conclusion about how the gun came to rest in the backyard. McGillan’s observation that
the gun’s condition was “consistent with actually being tossed or thrown” said nothing
about whether it was Brown who had thrown the gun; nor did it discount other ways the
gun could have arrived in the yard or become soiled. Instead, the testimony provided the
jury with one possible explanation, and the District Court did not abuse its discretion by
admitting it. See United States v. Shaw, 891 F.3d 441, 453–54 (3d Cir. 2018).
3 Finally, McGillan’s testimony did not rely on specialized knowledge because it
provided commonsense observations based on his personal experience. See Donlin v.
Philips Lighting N. Am. Corp., 581 F.3d 73, 81 (3d Cir. 2009). “The prototypical
example” of Rule 701 evidence “relates to the appearance of persons or things . . . and an
endless number of items that cannot be described factually in words apart from
inferences.” Fulton, 837 F.3d at 301 (quoting Asplundh Mfg. Div., a Div. of Asplundh
Tree Expert Co. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995)). No
specialized knowledge was necessary to determine that the grass and mud imbedded in
the gun’s surfaces were “consistent with actually being tossed or thrown.” App. 377. The
defense was free to cross-examine McGillan on the basis of his opinion, but did not. At
bottom, the District Court had a reasonable basis for concluding that McGillan’s opinion
did not fall within Rule 702’s ambit.
II
Brown’s second argument relates to the testimony of Detective Mullin, who
described for the jury his impressions of a surveillance video of Brown’s movements.
After watching the video close to a dozen times, Mullin identified for the jury various
instances when Brown could be seen carrying and manipulating a heavy object in his
jacket pocket. Brown claims that Mullin’s testimony was not helpful and was not based
on—indeed, it contradicted—Mullin’s personal observations prior to viewing the footage.
We are unpersuaded.
4 Mullin’s testimony focused on Brown’s movements and what appeared to be a
heavy object in his jacket pocket as the Government proceeded frame-by-frame through
the pixelated surveillance footage. His observations highlighted what the jury could not
clearly see viewing the footage at full speed and were based on extensive review of the
footage. Accordingly, it was not unreasonable for the District Court to conclude that
Mullin’s testimony aided the jury. See, e.g., United States v. Torralba-Mendia, 784 F.3d
652, 659 (9th Cir. 2015) (“[A]n officer who has extensively reviewed a video may offer a
narration, pointing out particulars that a casual observer might not see.”); cf. United
States v. Leo, 941 F.2d 181, 193 (3d Cir. 1991) (holding that testimony synthesizing
business records based on the witness’s prior review thereof satisfied Rule 701(b)’s
helpfulness requirement). Brown’s counsel was free to (and did) challenge Mullin’s
testimony based on his inconclusive personal observations from the day of the pursuit.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 17-3364 ____________
UNITED STATES OF AMERICA
v.
MARQUIES BROWN,
Appellant ____________
On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-16-cr-00016-001) District Judge: Honorable Richard G. Andrews ____________
Submitted November 6, 2018 Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.
(Filed: November 7, 2018)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.
Marquies Brown appeals his judgment of conviction, following a jury trial, for
knowing possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1). We
will affirm.
Brown makes three arguments on appeal, all of which relate to evidence admitted
at trial. In his first two assignments of error, Brown claims the District Court abused its
discretion when it admitted lay testimony. In his final challenge, he contends the
evidence was insufficient to convict him of possessing the firearm. We address each
argument in turn.
I1
In his principal argument, Brown challenges the testimony of Lieutenant
McGillan, who stated that the firearm in question “appeared to be dirty, and had fresh dirt
and grass kind of in the grooves consistent with actually being tossed or thrown in then
[sic] area where it was located.” App. 377. Brown claims this testimony should have been
excluded because it was not helpful, embraced the ultimate issue, and was based on
specialized knowledge within the scope of Rule 702. We disagree.
We begin by noting that although the Government bore the burden of satisfying
Rule 701, the modern trend is away from skepticism of lay opinion evidence and “toward
greater admissibility.” United States v. Fulton, 837 F.3d 281, 291 (3d Cir. 2016) (quoting
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 2 United States v. Stadtmauer, 620 F.3d 238, 262 (3d Cir. 2010)). We will not reverse a
district court’s decision to admit lay opinion testimony unless “no reasonable person
would adopt [its] view.” United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)
(quoting Ansell v. Greene Acres Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003)).
The record in this case leaves us unconvinced that Brown has met this difficult
standard. McGillan’s testimony was helpful to the factfinder because it provided details
the jury could not determine from the photos of the gun admitted into evidence at trial.
His observations were based on his first-hand knowledge after standing next to the gun
for at least ten minutes. They included how deeply the mud and grass were impressed in
the gun’s surface, which could not be determined from a two-dimensional photo. The
District Court therefore had a reasonable basis for concluding McGillan’s testimony
would help the jury.
Contrary to Brown’s argument, McGillan’s testimony did not embrace the
ultimate issue—whether Brown possessed the firearm—because his testimony reached no
conclusion about how the gun came to rest in the backyard. McGillan’s observation that
the gun’s condition was “consistent with actually being tossed or thrown” said nothing
about whether it was Brown who had thrown the gun; nor did it discount other ways the
gun could have arrived in the yard or become soiled. Instead, the testimony provided the
jury with one possible explanation, and the District Court did not abuse its discretion by
admitting it. See United States v. Shaw, 891 F.3d 441, 453–54 (3d Cir. 2018).
3 Finally, McGillan’s testimony did not rely on specialized knowledge because it
provided commonsense observations based on his personal experience. See Donlin v.
Philips Lighting N. Am. Corp., 581 F.3d 73, 81 (3d Cir. 2009). “The prototypical
example” of Rule 701 evidence “relates to the appearance of persons or things . . . and an
endless number of items that cannot be described factually in words apart from
inferences.” Fulton, 837 F.3d at 301 (quoting Asplundh Mfg. Div., a Div. of Asplundh
Tree Expert Co. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995)). No
specialized knowledge was necessary to determine that the grass and mud imbedded in
the gun’s surfaces were “consistent with actually being tossed or thrown.” App. 377. The
defense was free to cross-examine McGillan on the basis of his opinion, but did not. At
bottom, the District Court had a reasonable basis for concluding that McGillan’s opinion
did not fall within Rule 702’s ambit.
II
Brown’s second argument relates to the testimony of Detective Mullin, who
described for the jury his impressions of a surveillance video of Brown’s movements.
After watching the video close to a dozen times, Mullin identified for the jury various
instances when Brown could be seen carrying and manipulating a heavy object in his
jacket pocket. Brown claims that Mullin’s testimony was not helpful and was not based
on—indeed, it contradicted—Mullin’s personal observations prior to viewing the footage.
We are unpersuaded.
4 Mullin’s testimony focused on Brown’s movements and what appeared to be a
heavy object in his jacket pocket as the Government proceeded frame-by-frame through
the pixelated surveillance footage. His observations highlighted what the jury could not
clearly see viewing the footage at full speed and were based on extensive review of the
footage. Accordingly, it was not unreasonable for the District Court to conclude that
Mullin’s testimony aided the jury. See, e.g., United States v. Torralba-Mendia, 784 F.3d
652, 659 (9th Cir. 2015) (“[A]n officer who has extensively reviewed a video may offer a
narration, pointing out particulars that a casual observer might not see.”); cf. United
States v. Leo, 941 F.2d 181, 193 (3d Cir. 1991) (holding that testimony synthesizing
business records based on the witness’s prior review thereof satisfied Rule 701(b)’s
helpfulness requirement). Brown’s counsel was free to (and did) challenge Mullin’s
testimony based on his inconclusive personal observations from the day of the pursuit.
Nevertheless, Mullin’s narration of the surveillance footage was rationally based on his
perceptions, so the District Court did not abuse its discretion by admitting it.
III
Brown’s last contention is that the evidence was insufficient to convict him of
knowingly possessing the firearm. Viewing the evidence, as we must, in the light most
favorable to the verdict winner (here, the Government), we find the evidence sufficient to
support the jury’s verdict. The officers who observed Brown testified that he had a gun in
his pocket. Although Brown did not possess a gun on his person at the time he was
arrested, a juror could reasonably conclude the bulge weighing down Brown’s jacket— 5 which officers observed and video surveillance captured—was the gun officers found
nearby, shortly after locating Brown, in a backyard where it did not belong, along the
route down which officers had just pursued him. “It is up to the jury—not . . . [this]
Court—to examine the evidence and draw inferences.” United States v. Caraballo-
Rodriguez, 726 F.3d 418, 432 (3d Cir. 2013). Because this jury’s verdict was not
irrational, Brown’s sufficiency challenge fails.
* * *
For the reasons stated, we will affirm the judgment of the District Court.