                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2007

USA v. Suggs
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2640




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                     No. 04-2640


                          UNITED STATES OF AMERICA

                                          v.

                                   JAMES SUGGS,

                                               Appellant



                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal Action No. 03-cr-00109)
                    District Judge: Honorable Michael M. Baylson


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 6, 2007


                   Before: SLOVITER and AMBRO, Circuit Judges
                            THOMPSON,* District Judge

                            (Opinion filed April 26, 2007)



                                      OPINION



   *
   Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
AMBRO, Circuit Judge

       James Suggs appeals his conviction and sentence for two counts of unarmed bank

robbery. After the jury returned a guilty verdict in the District Court for the Eastern

District of Pennsylvania, Suggs moved for a judgment of acquittal or, in the alternative, a

new trial. The District Court denied both motions and sentenced Suggs to the middle of

the then-mandatory federal Sentencing Guidelines range, based in part on a two-level

enhancement after a judicial finding that Suggs committed one of the robberies with a

threat of death. Suggs argues that the Court’s rulings on the motions were erroneous and

that its sentence violated the Sixth Amendment of our Constitution. Upon review and for

the reasons stated below, we affirm the conviction but vacate the sentence and remand for

resentencing.

I.     Procedural Background

       Suggs was indicted for armed bank robbery (in February 2002) in violation of 18

U.S.C. § 2113(d) (Count 1), use of a firearm during a crime of violence in violation of 18

U.S.C. § 924(c) (Count 2), and two counts of unarmed bank robbery (in March 2002 and

January 2003) in violation of 18 U.S.C. § 2113(a) (Counts 3 and 4). At the conclusion of

trial, the jury returned verdicts of not guilty for Counts 1 and 2, and guilty for Counts 3

and 4. The Court denied Suggs’s Post-Trial Motions for Acquittal or, alternatively, New

Trial pursuant to Federal Rules of Criminal Procedure 29(c) and 33(a), and issued a

Memorandum to explain its decision. See United States v. Suggs, Crim. No. A.2003-109,



                                              2
2004 WL 1240621 (E.D. Pa. May 11, 2004).

         Adopting the Presentence Report, the Court determined that, for Count 3, the base

offense level was 20 for violation of 18 U.S.C. § 2113(a) under U.S.S.G. § 2B3.1,1 added

a two-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(1) for taking the property of a

financial institution, and added another two-level enhancement pursuant to

§ 2B3.1(b)(2)(F) for making a “threat of death” during the robbery. This resulted in a

total adjusted offense level of 24. The Court’s calculation for Count 4 was the same as

that for Count 3 minus the two-level enhancement for a “threat of death,” resulting in a

total adjusted offense level of 22.2 Under U.S.S.G. § 3D1.4,3 the Court took the higher


   1
       Following the District Court, all references to the Guidelines are to the 2003 Manual.
   2
    Note that, ordinarily, “[w]hen a defendant has been convicted of more than one
count, the court [is required to]: (1) Group the counts resulting in conviction into distinct
Groups of Closely Related Counts (‘Groups’) by applying the rules specified in §3D1.2.”
U.S.S.G. § 3D1.1(a). However, offenses covered by U.S.S.G. § 2B3.1—including bank
robbery under 18 U.S.C. § 2113(a)—are excluded from grouping, and each count is an
independent Group. This exclusion applies here. Suggs’s offense levels, therefore, were
calculated separately for each Count, and each Count was considered a separate Group.
   3
       This provision states, in relevant part, that for multiple counts,

         [t]he combined offense level is determined by taking the offense level applicable
         to the Group with the highest offense level and increasing that offense level by [a
         certain] amount [as indicated in a table].
         ...
         In determining the number of Units for purposes of this section:

                (a)     Count as one Unit the Group with the highest offense level. Count
                        one additional Unit for each Group that is equally serious or from 1
                        to 4 levels less serious.
                        ...

                                                 3
offense level and enhanced it by two to yield a combined adjusted offense level of 26.

Combining the offense level with a criminal history category of IV for past convictions

and parole violations, the Court determined that the Guidelines range sentence was 92 to

115 months’ imprisonment. It sentenced Suggs to 110 months’ imprisonment, three

years’ supervised release, and restitution payments in the amount of $4,885.

          Suggs appeals the District Court’s denial of his motion for acquittal or a new trial

on the grounds that the evidence was insufficient to support the convictions, that the

District Court erred with respect to the jury instructions, and that it committed a number

of fatal errors in its evidentiary rulings. Because each ground is fact-intensive, we review

the facts in our analysis below in more detail than normal for a not-precedential opinion.

Suggs also appeals his sentence on the grounds that (1) the two–level “threat of death”

enhancement violates the Sixth Amendment because it was a judicial finding by a

preponderance of the evidence rather than a jury determination beyond a reasonable

doubt, and (2) he is entitled to a remand in the wake of United States v. Booker, 543 U.S.

220, 243 (2005) (rendering the Guidelines advisory), because the Court imposed his

sentence in a mandatory sentencing regime.4

II.       Challenges to the conviction



U.S.S.G. § 3D1.4 (emphasis in original).
      4
    The District Court had subject matter jurisdiction over this case under 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. ' 1291 and 18 U.S.C. ' 3742(a)(1).
See United States v. Cooper, 437 F.3d 324, 327–28 & n.4 (3d Cir. 2006).

                                                4
       A.     Insufficiency of the evidence challenges under Rule 29

        Suggs first asks us to reverse the District Court’s refusal to enter a judgment of

acquittal pursuant to Rule 29 for both Counts 3 and 4.5 For Count 3, he challenges the

sufficiency of the evidence to establish that he possessed stolen goods, much less that he

robbed the bank. For Count 4, he “does not challenge his possession of robbery

proceeds,” Appellant’s Br. at 31, but contends that mere possession cannot create the

inference that he committed the robbery.

       We review a denial of a judgment of acquittal de novo, applying the same standard

as the District Court. United States v. Flores, 454 F.3d 149, 155 (3d Cir. 2006). Our

review is “highly deferential.” United States v. Hodge, 321 F.3d 429, 439 (3d Cir. 2003)

(citations omitted). We must sustain the verdict if, viewing the evidence in the light most

favorable to the Government, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318–19 (1979); Flores, 454 F.3d at 155; United States v. Jannotti, 673 F.2d 578, 598 (3d

Cir. 1982) (en banc).

              1.      Count 4—January 3, 2003 Bank Robbery

       We begin with the District Court’s uncontested recitation of the facts relating to

the second robbery first, as it is central to reviewing Suggs’s challenge to his conviction



   5
    The rule provides, in relevant part, that “[a] defendant may move for a judgment of
acquittal . . . . If the jury has returned a guilty verdict, the court may set aside the verdict
and enter an acquittal.” Fed. R. Crim. P. 29(c).

                                                5
for the earlier robbery in Count 3.

              Defendant was taken into custody at the Marshall Street
              Check Cashing Agency at 421 West Marshall Street,
              Norristown, with $ 450 in red, dye-stained money on the
              Saturday morning (January 4, 2003) following the bank
              robbery charged in Count IV. Defendant gave the person
              operating the check cashing agency, Kenneth Pfalzer, and a
              Norristown police officer who responded to Pfalzer’s call to
              come to the agency, two different explanations for his
              possession of the dye-stained money. Suggs agreed to
              accompany the police officer to the Norristown Police Station
              where after a short delay, he was questioned by an FBI agent
              and other detectives. Some of Defendant’s statements at the
              police station were admitted into evidence6 and the jury was
              entitled to find that they were false exculpatory statements
              which were incriminating.

              Defendant consented to a search of his car where police found
              a white T-shirt stained with red dye, money orders, and black
              gloves. An FBI examination of the T-shirt showed that the
              T-shirt contained both traces of tear gas and the dye
              commonly found in bank dye packs given to bank robbers by
              tellers.7 The bank tellers could not identify Suggs, but their
              description of the robber was consistent with his general
              build. In addition, dye-stained money was found at a nearby
              coin exchange machine at the B&B Car Wash, which
              investigators were able to identify through “bait money” lists
              as proceeds taken during the January 3, 2003 robbery. There
              was also evidence that around this time, soon after the
              January 3, 2003 robbery, dye-stained money was also found
              inside the coin exchange machines at the Elmwood Park Car
              Wash. Suggs had in his possession a receipt, dated the day


   6
    [D. Ct. Op. n.1] The circumstances of this interrogation were the subject of a pretrial
motion to suppress, which the Court granted in part and denied in part. United States v.
Suggs, No. 2003-109, 2003 U.S. Dist. LEXIS 20181 (E.D. Pa. Oct. 30, 2003).
   7
     [D. Ct. Op. n.2] Tracey Turner, a teller involved in the January 3, 2003 bank robbery,
testified that she gave the bank robber a dye pack.

                                             6
                after the robbery, indicating that he had attempted to
                exchange $438.75 in quarters for U.S. currency at the Giant
                Supermarket in Norristown.

                The government introduced other evidence, and although
                entirely circumstantial, built a large quantum of evidence in
                the aggregate, and the Court finds, as it stated at the time of
                the motion for acquittal at the close of the government's case,
                that the evidence was sufficient for the jury to convict the
                Defendant as to Count IV.

Suggs, 2004 WL 1240621, at *1–2 (internal citations omitted). The Court’s analysis

indicates that the jury relied on more than mere possession to convict him for robbery.

Suggs’s challenge to the contrary thus fails.

                2.     Count 3—March 29, 2002 Bank Robbery

       The District Court centered on four principal facts in evaluating the sufficiency of

the evidence to support the jury’s verdict for Count 3. First, the bank teller involved in

the incident, Diane Haney, testified that she gave the robber an exploding dye-pack,

which another teller watched explode as the robber left the bank.

       Second, Pfalzer, operator of the nearby check-cashing agency, positively

identified Suggs as having been in possession of dye-stained money a day or two after

the robbery8:

                Q:     At some time around noon on March 31st, 2002, did
                       anything unusual take place in the business, the check


   8
     There is some discrepancy as to timing. But, as the Court concluded, the precise
dating was immaterial to the central claim that when “Mr. Pfalzer encountered the
Defendant, it was less than 48 hours after the March 29, 2002 bank robbery.” Suggs,
2004 WL 1240621, at *3 & n.3.

                                                7
     cashing agency, at that time?

     ...

A:   What took place is, that day I was very busy. There
     was a gentleman that came up that had—that I saw that
     had dye-stained money. And the—the window at
     which I was working at there was cameras, I had three
     cameras located—the cameras are direct—placed
     directly in front of the window, so it’s just shot right
     down directly on the person who’s standing in front of
     me.

     Mr. Suggs, the gentleman over to the left right there,
     approached me, asked for two money orders in the
     sum of $300 each. I saw the red dye money. I said,
     “No.” He turned away, he acted very nervous, and
     walked away.

Q:   All right. Let me ask you about this: You said the
     person came up to your window?

A:   Yes. . . . Stood to the left of my window.

Q:   All right. And generally how would you describe this
     person?

A:   He was very nervous. . . . He was a black fellow.

Q:   And how far was he from you on that particular day
     when you had—when you dealt with him?

A:   About three feet. There’s a space between us.
     Between the counter and the glass, on the other—other
     side of the glass.

Q:   All right. Now, do you see that person that came up to
     [your window] on that day here in this courtroom?

A:   Yes, sir.


                             8
              Q:      All right. Can you point him out to the members of
                      the jury.

              A:      That man right over there (indicating).

              Q:      Let the record reflect the witness has identified James
                      Suggs.

              THE COURT: Okay.

App. at 608–10.

       Third, the evidence established that nine months later, after the second bank

robbery (in 2003) for which Suggs was convicted, he went to the same check cashing

agency to attempt the same transaction with Pfalzer. Finally, employees of a local car

wash testified that they found dye-stained money in the coin change machines on March

31, 2002 or April 1, 2002 (two and three days after the robbery, respectively), and found

dye-stained money at the same machines after the 2003 robbery.

       The Court determined that “the jury was entitled to conclude that the Defendant,

perhaps out of habit as well as stupidity, took dye-stained money on a morning shortly

following both robberies to the same check cashing agency . . . [and car wash].” Suggs,

2004 WL 1240621, at *4 (emphasis added). It also noted that “the fact that these two

robberies are nine months apart [does not] destroy[] any argument about probative value

[because] . . . the facts in this case are unique facts that the jury could take into

consideration, and which constitute sufficient circumstantial evidence to convict.” Id.

Finally, the Court concluded that “the jury was entitled to consider the evidence which


                                               9
had been introduced as part of the government’s evidence in proving Count [4] [the

subsequent 2003 robbery] as tending to prove that the Defendant used the same conduct

on the day following [this] robbery, charged in Count [3] . . . . The common sense

inferences from these bizarre events allow a jury to infer guilt.” Id.9

       Suggs advances six arguments challenging the sufficiency of the evidence relating

to the possession of stolen money charge: (1) the evidence only established that he was in

possession of dye-stained money, not that the money was stolen or that it came from the

bank; (2) there was no proof that the red dye on the $56 recovered from the change

machine came from a dye-pack, and thus that the money was stolen at all; (3) Pfalzer’s

testimony, at most, established that he possessed stolen money, not that he stole the

money; (4) the proximity of Suggs’s home to the change machine from which $56 in

dye-stained money was recovered is not probative or conclusive to establish a connection

to him; (5) there was no testing for fingerprints on the $56 to link it to Suggs; (6) the

bank tellers’ identification testimony was both inconsistent and inconclusive—one

having described him as a black male, 5'6", and 20–30 years old, and another having

described him as “sounding” white, 5'7", 20 years old, and 150 pounds—whereas, in fact,


   9
    Suggs seems to have dropped his argument that it was improper to allow the jury to
look to events following the 2003 robbery for its verdict concerning events following the
2002 robbery—i.e., that Suggs was apparently found at the same check cashing agency
with dye-stained money and that stained money was found in the same change machines
both times within days of the robbery. Essentially, this was a challenge to the use of habit
evidence: can a jury look to “habit” from future alleged crimes in support of its
conviction on an earlier count? The Court implicitly suggested that a jury could do so.
Because Suggs did not preserve this issue, it is waived and we do not address it.

                                              10
Suggs is black, says he is 5'9" and 170 pounds, and was approximately 50 years old at the

time of the robbery. In sum, he contends, the only facts proven beyond a reasonable

doubt were that he entered the check cashing establishment two days after the robbery

and that stolen money was found in a car wash machine in his town of residence. He

concludes that these facts cannot support a conviction because the Government did not

satisfy its burden of proving each element of the crime beyond a reasonable doubt.

       The first two arguments are easily disposed. As the District Court pointed out,

Suggs, 2004 WL 1240621, at *3, dye-stained money is known commonly to be a sign of

bank robbery proceeds. E.g., United States v. Edwards, 242 F.3d 928, 935 (10th Cir.

2001) (“Dye-packs are not available to the public, and are primarily used to mark money

stolen from banks.”); see also United States v. Wilson, 369 F.3d 329, 335 (3d Cir. 2004)

(accused bank robber demanded that tellers refrain from including traceable dye-packs

with the money demanded), vacated on other grounds and for reconsideration in light of

Booker, 543 U.S. 220 (2005); United States v. Thomas, 327 F.3d 253, 254 (3d Cir. 2003)

(same). Courts recognize that there is a presumption that the jury properly evaluated

credibility of witnesses, found facts, and drew rational inferences. United States v.

Wasserson, 418 F.3d 225, 237 (3d Cir. 2005) (quoting United States v. Iafelice, 978 F.2d

92, 94 (3d Cir. 1992)); cf. United States v. Navarro, 145 F.3d 580, 592 (3d Cir. 1998).

On that presumption, we conclude that it was not improper for the Court to allow the jury

to infer that Suggs’s possession of dye-stained money and the existence of such money in



                                             11
the change machine—taken together with the other evidence—implicated Suggs in a

robbery.

       The next three arguments concern whether the evidence of Suggs’s possession of

stolen funds sufficed to sustain a conviction for this robbery. Suggs argues that the

Government simply relied on the proximity of his home to the change machine without

testing the money for fingerprints to link the stolen proceeds to the robbery conclusively.

He contends that this is not enough under United States v. Bamberger, 456 F.2d 1119 (3d

Cir. 1972), which reversed a robbery conviction because the Government failed to prove

that the defendant was in actual or constructive possession of the stolen funds. Id. at

1134 (“The fatal deficiency in the government’s case lay in its failure to prove actual or

constructive possession of the bait money by Young.”).

       Yet Bamberger is distinguishable. As the District Court highlighted in rejecting

Suggs’s challenge, the Government in Bamberger never even proved that the defendant

possessed stolen funds, but here it did. Suggs, 2004 WL 1240621, at *5 (“[D]efendant’s

possession of stolen bank proceeds has been proven through Mr. Pfalzer’s testimony . . .

that positively identified Defendant as the possessor of the stained money.”). The Court

concluded that possession sufficed to prove robbery here because “‘beyond a reasonable

doubt’ is not beyond [the] possibilities” that “the defendant could have received the

money from the robber . . . [or] that the defendant could have found the money on the

street.” Id.



                                            12
        We hasten to emphasize that proof of possession alone is not enough to sustain a

robbery conviction. The Bamberger Court recognized this in stating that “[w]ithout

proof of possession, there can be no rational basis to the inference of guilt . . . [,] this

being the sole incriminating evidence against Young.” Bamberger, 456 F.3d at 1135

(emphasis added). We also note that the “beyond a reasonable doubt” standard does not

allow convictions based on one of several equally plausible possibilities; this standard

requires more certainty in the minds of the jurors. See, e.g., 2 McCormick on Evidence

§ 341 (6th ed. 2006). Here, possession, when considered along with other corroborating

evidence to support the inference of guilt for the robbery, was sufficient to support the

inference beyond a reasonable doubt. We presume that the jury applied the reasonable

doubt standard as instructed in arriving at its verdict, and we do not attempt to interject

our view of the evidence for that of the jury. As such, Suggs’s third, fourth, and fifth

challenges fail as well.10

        On this basis, we need not address in detail Suggs’s sixth contention—that the

bank tellers’ identification testimony was inconsistent and inconclusive. Alone, any

deficiency in their testimony cannot support a judgment of acquittal, as the District Court


   10
      We do not discount Suggs’s suggestion that the Government could have employed
additional tests, such as fingerprinting, to elicit more certain proofs against him to prove
that the stolen proceeds came from the bank robbery. Indeed, it is advisable that the
Government employ such tests, as reasonable doubt allows juries to convict only when
they are satisfied with a degree of certainty that a defendant is guilty of all elements of a
crime. We only hold that, even without doing so here, the jury found that the evidence
sufficed to support an inference of guilt for the robbery through linking the stolen funds
to Suggs. For further discussion of the type of evidence required, see infra, § II.B.2.c.

                                               13
concluded. Suggs, 2004 WL 1240621, at *5.

       In sum, the Court ruled that the above facts, together with the presumption that a

rational jury considers all the evidence before it, was sufficient to support the inference

that the dye-stained money constituted stolen proceeds from a bank robbery. We agree.

       B.     Evidentiary and procedural challenges under Rule 33

       Suggs also challenges the District Court’s refusal to grant him a new trial pursuant

to Rule 33 of the Federal Rules of Criminal Procedure, which permits a district court to

overturn a conviction in the interest of justice. However, “[m]otions for a new trial based

on the weight of the evidence are not favored. Such motions are to be granted sparingly

and only in exceptional cases.” United States v. Brennan, 326 F.3d 176, 189 (3d Cir.

2003) (citations omitted). They are appropriate “only if [the court] believes that there is a

serious danger that a miscarriage of justice has occurred—that is, that an innocent person

has been convicted.” Id. (citations omitted). We review the denial of a Rule 33 motion

for abuse of discretion. United States v. Jasin, 280 F.3d 355, 360 (3d Cir. 2002).

“Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33

motion it does not view the evidence favorably to the Government, but instead exercises

its own judgment in assessing the Government’s case.” United States v. Johnson, 302

F.3d 139, 150 (3d Cir. 2002) (citations omitted).

       Suggs makes three types of claims here: that the convictions were contrary to the

weight of the evidence, that they resulted from improper jury instructions, and that they



                                             14
stemmed from impermissible evidentiary rulings.

                1.     Weight of the evidence

         As he acknowledges, Appellant’s Br. at 29, Suggs’s arguments regarding the

denial of his new trial motion based on the weight of the evidence as to Count 3 rehashes

those made in support of his insufficiency of the evidence claim. He adds two

observations that, in his view, could have supported a verdict of not guilty because they

show that he was in need of money after the robbery (he was gainfully employed though

he pawned a camera for $105 shortly after the robbery) and provide an alternative

explanation for his possession of dye-stained money (he bought $450 in dye-stained

money at a discount—for $150—from another individual). We have already explained

our view that there is sufficient evidence to support Suggs’s conviction. These additional

observations do not change that and offer no reason for us to doubt either the District

Court’s conclusion that no miscarriage of justice took place or its refusal to grant a new

trial.

                2.     Jury instructions

         Suggs also urges us to reverse the District Court’s refusal to grant a new trial on

the basis that it committed numerous errors in giving jury instructions on both counts.

He contends that the Court’s errors were so prejudicial that they represent the type of

miscarriage of justice that warrants a new trial.

         We exercise plenary review in determining “whether the jury instructions [state]



                                               15
the proper legal standard.” United States v. Khorozian, 333 F.3d 498, 507–08 (3d Cir.

2003) (citations omitted). “It is well-settled that the trial judge retains discretion to

determine the language of the jury charge . . . [s]o long as the court conveys the required

meaning,” and is under no obligation “to use the language the defendant proffers.”

Flores, 454 F.3d at 161. Thus, we review a court’s refusal to give a particular instruction

for abuse of discretion, and consider “the totality of the instructions and not a particular

sentence or paragraph in isolation.” Khorozian, 333 F.3d at 507–08. We will only

reverse if the proposed instructions were “correct, not substantially covered by the

instructions given, and [were] so consequential that the refusal to give the instruction was

prejudicial to the defendant.” United States v. Leahy, 445 F.3d 634, 651 (3d Cir. 2006)

                      a.     Recent possession of stolen property

       Suggs argues that the Court erred in giving instructions for “recent possession of

stolen property” on Counts 3 and 4. We reject Suggs’s claims that it was improper for

the Court to give the instruction at all with respect to Count 3, for reasons laid out above

in our discussion regarding the sufficiency of the evidence. We also reject his contention

that the jury instructions stated the law incorrectly.

       The District Court instructed the jury as follows:

              Possession of recently-stolen property, if not satisfactorily
              explained, is the circumstance[] from which a jury may infer
              that the person in possession of it not only knew that the
              property was stolen, but also participated in the theft in some
              way.



                                              16
              The term “recently” is a relative one. It has no fixed
              meaning. [Whether] property may have been considered as
              recently stolen depends on the nature of the property and all
              of the other evidence received in the case. It is solely for the
              jury to decide what inferences, if any, are to be drawn from
              the evidence received in the case.

              You’re not required to make any connection between the
              Defendant’s possession of dye-stained money and
              participation in an actual bank robbery.

              The mere fact that I am telling you about this connection does
              not mean I am encouraging you to make it. You have the
              right to reject this connection if you deem it appropriate to do
              so. Remember that at all times the Government has the
              burden of proving beyond a reasonable doubt that Defendant
              participated in the robbery.

       The first two paragraphs and the last sentence of this instruction mirror, almost

verbatim, the standard instructions provided in 1A Fed. Jury Practice & Instructions:

Criminal § 16.10 (O’Malley et al. eds., West 2000), and affirmed in Barnes v. United

States, 412 U.S. 837, 840–846 (1973). Under Barnes, this was a correct statement of the

law and, in reminding the jury that any inferences it drew from a finding possession were

subject to the reasonable-doubt requirement for proving the robbery, the Court

accommodated Suggs’s concern that the jury not rely solely on possession as the basis for

its robbery verdict. We therefore cannot conclude that the District Court abused its

discretion in rejecting Suggs’s proffered additions to those instructions.

                     b.     “Cross-racial identification”

       Suggs argues that the jury should have been given special instructions alerting



                                             17
them to the “cross-racial recognition impairment of eyewitnesses” because of the critical

role Pfalzer (who is white) played in identifying Suggs (who is black) in connection with

the crime. Appellant’s Br. at 36–37 (quoting New Jersey v. Cromedy, 727 A.2d 457, 458

(N.J. 1999)). However, as Suggs acknowledges, our Court has no such requirement.

Therefore, and because the Court gave the identification instructions that we do require,

see App. at 1014–16, we see no miscarriage of justice and no abuse of discretion in the

Court’s refusal to grant a new trial on this basis.

                       c.     “Weaker or less satisfactory evidence”

         According to Suggs, the District Court also erred by declining to give an

instruction on “weaker or less satisfactory evidence.”11 Essentially he argues that the

Government’s failure to follow forensic and testimonial leads to more solid evidence

created numerous deficiencies in the case against him. According to Suggs, the evidence

of a crime is all circumstantial and, given the lack of more direct evidence, “it is

reasonably possible that the Court’s failure to instruct the jury that it may consider these


   11
        Suggs proposed the following instruction:

         If the government offers weaker or less satisfactory evidence when stronger or
         more satisfactory evidence could have been produced at trial, you may, but are not
         required to, consider this fact in your deliberations. Remember that a defendant is
         not obliged or required to produce any evidence or to call any witnesses.

Appellant’s Br. at 46 (said to be “adapted” from O’Malley et al., supra, § 14.14)
(emphasis added by Appellant). As the Government notes, Suggs has added the italicized
words to the language provided in the sourcebook, Fed. Jury Practice & Instructions. See
O’Malley et al., supra, § 14.14 (using “a party” instead of “the government” and omits
“or required”); cf. United States v. Canas, 595 F.2d 73, 80–81 (1st Cir. 1979) (same).

                                              18
deficiencies in evaluating reasonable doubt substantially influenced their [sic] verdict.”

Appellant’s Br. at 49. This appears to be yet another iteration of the insufficiency of the

evidence argument, and does not satisfy the Rule 33 standard for a new trial, which is

triggered where there is a serious danger that a miscarriage of justice has occurred. The

“weaker or less satisfactory evidence” instruction was not required, and the decision to

give it was within the scope of the Court’s discretion. In light of the facts that the jury

found the evidence sufficient to convict Suggs and that the Court gave instructions on the

reasonable-doubt standard as well as on the use of circumstantial evidence, we do not

think that the Judge abused his discretion in denying a new trial on this basis.

               3.     Evidentiary rulings

                      a.     Photographs of injuries on Suggs’s hands

        Suggs next contends that the District Court fatally erred when it admitted three

photographs of a blister on his left palm over his objections, and then allowed the

Government to reference them in its closing arguments, all without laying a proper

foundation for their introduction.12 Moreover, the Government, he claims, failed to

produce an expert witness to give medical testimony linking the injury to an exploding

dye-pack as required by Federal Rules of Evidence 701 and 702.


   12
     Although the parties do not invoke evidentiary rules 401 and 402, they discuss the
propriety of admitting the photographs in terms of relevance. We note that, of course,
only relevant evidence is admissible. Fed. R. Evid. 402. Relevant evidence is defined as
any “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Fed. R. Evid. 401.

                                              19
        We review rulings for the admissibility of evidence for abuse of discretion, and

Suggs will prevail if he can show that the District Court’s decision was “arbitrary,

fanciful, or clearly unreasonable.” Moyer v. United Dominion Indus., Inc., 473 F.3d 532,

542 (3d Cir. 2007) (citations omitted). To the extent that the decision to admit opinion

testimony turned on the District Court’s interpretation of Rules 701 or 702, we exercise

plenary review. See Asplundh Mfg. Div. v. Benton Harbor Eng., 57 F.3d 1190, 1194–95

(3d Cir. 1995).13

        Here, the Court decided to admit the photographs after the Government

demonstrated that an exploding dye-pack had activated and burned the money following

the 2003 robbery. The Government’s theory was that the dye-pack caused the burns

shown in the photographs, although Suggs reported to a detective that he had burned his

hand while cooking. Despite (or because of) the disagreement on the causes of the burn,

the Court concluded that the Government established the relevance of the photographs as

to whether Suggs possessed the dye-pack soon after the robbery. The Government then

introduced testimony in the attempt to prove that dye-packs can cause the types of burns


   13
      Rule 702 permits expert testimony to assist triers of fact in understanding technical
evidence. Fed. R. Evid. 702 (“If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.”). Rule 701 permits a lay witness to
provide opinion evidence. Fed. R. Evid. 701 (“If the witness is not testifying as an
expert, the witness’ testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of the witness’ testimony or the determination of a
fact in issue.”).

                                             20
apparent in the photographs of Suggs’s hand and of charred bills left behind on the bank

floor after the robbery. Mike Eppel, a Sales Representative for the company that

manufactured and sold the red-dye security pack to the bank in question, see App. at

795–96, testified that the explosion device burned hot “enough that the bills that are

placed on the pack do char.” Id. at 802. Given the importance of possession to the

question of guilt for robbery here, we have no reason to conclude that the Government

did not establish the relevance of the photos or that the District Court’s decision to admit

them or Eppel’s testimony was “arbitrary, fanciful or clearly unreasonable.” We

therefore discern no abuse of discretion here.

       We turn to the question whether the dye-packs could cause the types of burns

shown in the photographs and thus required expert medical or lay witness testimony

under Wilburn v. Maritrans GP Inc., 139 F.3d 350, 355 (3d Cir. 1998) (ruling that a new

trial was warranted where the knowledge to determine whether the captain of a vessel

was negligent in his operation of a sea-vehicle “was beyond the common knowledge

possessed by the members of the jury”). Eppel, Suggs maintains, met the requirements of

neither Rule 702, in that he had no medical expertise, nor Rule 701, in that he had no

“relevant specialized knowledge” to offer an opinion. See Asplundh Mfg., 57 F.3d at

1201–02.

       We agree with Suggs’s argument on the technical nature of the burns, and that

Eppel did not possess the requisite expertise to inform the jury about the capacity of



                                             21
exploding dye-packs to produce the type of burns shown in the photographs. To the

extent that the determination whether the dye-packs linked to the burn marks lay beyond

the jurors’ common knowledge, the Court should have admitted the evidence only

alongside the testimony of an expert medical witness. However, in this case, the

significance of this concern is diminished by the weight of the other evidence supporting

the conviction and by the fact that Suggs had the opportunity to—and did—rebut Eppel’s

testimony by offering another explanation for the burn marks. As we presume that the

jury weighed all of the evidence together, we conclude that the admission of this

evidence did not cause a miscarriage of justice and does not warrant a new trial.

                     b.     Identification testimony of Hughes

       Suggs next argues that the District Court erred in refusing to grant a mistrial with

respect to two issues related to the identification testimony of Adrienne Hughes, his

estranged girlfriend. According to Suggs, Hughes purported to identify him based on his

height, weight, and manner from still surveillance photographs of the back of a fully

masked person taken in connection with the first bank robbery (Count 1), see App. at

298, 488, and this prejudiced him with respect to Counts 3 and 4. Second, he contends

that F.B.I. Agent Lash’s reference to Hughes’s identification for Count 1 in his testimony

for Counts 3 and 4 was prejudicial.

       We review the denial of a motion for mistrial for abuse of discretion. United

States v. Lore, 430 F.3d 190, 207 (3d Cir. 2005). In reviewing the denial of the motion



                                             22
on that standard, “three factors guide our analysis: (1) whether [the] remarks were

pronounced and persistent, creating a likelihood they would mislead and prejudice the

jury; (2) the strength of the other evidence; and (3) curative action taken by the district

court.” Id.

          To be sure, any suggestion that Hughes or anyone else has the expertise to

identify a masked person from the back in a still photo is dubious. See, e.g., United

States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995) (evidence is only inadmissible when “the

photographs are . . . so hopelessly obscure that the witness is no better-suited than the

jury to make the identification”). Yet, even if it were error to admit her testimony (if

Suggs described the photographs accurately),14 we see no indication that Suggs was

prejudiced by it. He was acquitted on Counts 1 and 2, the robbery for which Hughes

offered the identification testimony. In addition, there is no evidence to suggest that her

identification had a “prejudicial spillover” effect with respect to Counts 3 and 4. See

United States v. Cross, 308 F.3d 308, 316–17 (3d Cir. 2002) (holding that prejudice may

result if the jury heard evidence related to one count that was inadmissible in relation to

another, provided there is evidence that the evidence “affected adversely the verdict on

the remaining count”). To the contrary, Suggs’s acquittal on the counts to which the

identification testimony related suggests that the jury did not give Hughes’s testimony

much weight; the judge gave limiting instructions with respect to the testimony, see App.



   14
        The photographs are not in the record.

                                                 23
1016–17;15 and, as mentioned before, the other evidence sufficed to sustain a conviction

without this testimony. Under our mistrial analysis in Lore, these considerations are

enough to convince us that there was no prejudicial error in the Court’s rulings

concerning Hughes’s testimony or the grant of a new trial on these grounds.

                       c.     FBI testimony

         Suggs also contends that the District Court erred in refusing to grant a mistrial

when Agent Lash stated that his job was “to investigate the crime and bring it to a


   15
        He instructed as follows:

                Now I want to give you a specific instruction as to Adrienne
                Hughes who identified Mr. Suggs as the robber of one bank
                concerning the February 22, 2002 robbery which is charged in
                Count 1 of the superseding indictment.

                You will recall that she made this identification, not as an
                eyewitness to the robbery, but from bank surveillance
                photographs. It is obvious that the face of the bank robber is
                obscure. Ms. Hughes testified that she could tell that the
                Defendant was the bank robber depicted in those photographs
                from the body, size, posture[,] and height of the bank robber
                in the photographs. . . .

                I instruct you to scrutinize Ms. Hughes’[s] identification and
                treat it with caution. Consider carefully the evidence
                concerning the underlying basis for her identification. You
                should also consider whether she has any bias or motivation
                for her testimony, including any agreements with local police
                that may have provided a motive for making the identification
                that was offered at this trial. After following this instruction,
                it is up to you to decide on the credibility of Ms. Hughes and
                what weight to give her testimony.

App. at 1016–17.

                                               24
conclusion at prosecution, to identify the guilty party and then proceed to prosecution,”

App. at 830 (emphasis added), because the statement was improper and prejudicial.

         Applying the three Lore factors that guide mistrial analyses here, Suggs’s

challenge fails because: (1) a single statement by the Agent was in no way “pronounced

and persistent;” (2) the other evidence sufficed to establish guilt without the Agent’s

testimony; and (3) the Court struck the testimony, precluded the Government from asking

further questions about the agent’s investigation, and issued curative instructions for the

jury to ignore the testimony.16 Thus, we cannot conclude that the Agent’s stricken

statements warranted a ruling of mistrial, and must instead conclude that there was no

abuse of discretion on any of Suggs’s Rule 33 challenges.

III.     Sentencing Challenge

         Finally, Suggs raises a Sixth Amendment claim as to his sentence. He asserts that



   16
        Immediately after the Agent offered this testimony, the Court responded as follows:

                I’m going to strike that [testimony]. . . . The jury will
                ignore—I instruct you to ignore that testimony. . . . There’s
                no possible indication that because the F.B.I. investigates
                somebody, that they identify a guilty party. . . . [T]he
                purpose of this trial [is] . . . for the government to prove the
                defendant guilty beyond a reasonable doubt. . . . I’m going to
                rule that because of the improper testimony, I’m going to
                preclude [the government attorney] from asking any
                questions of the agent about his investigation of this robbery.

App. at 830–31. In its instructions to the jury at the end of trial, the Court also
emphasized the presumption of innocence, App. at 1011, and noted that stricken
testimony must be disregarded, App. at 1026.

                                               25
he is entitled to resentencing after United States v. Booker because the District Court

enhanced his offense level by two levels for a death threat upon judicial factfinding and

because it imposed the sentence under a mandatory Guidelines regime.17

        We held in United States v. Davis that we would remand cases where a defendant

could show the potential for plain error and prejudice from pre-Booker sentences. 407

F.3d 162, 164–66 (3d Cir. 2005) (“[P]ost-Booker[,]. . . defendants sentenced under the

previously mandatory regime whose sentences are being challenged on direct appeal may

be able to demonstrate plain error and prejudice. We will remand such cases for

resentencing.”) (internal citations, quotation marks, and brackets omitted).

        In accordance with Davis, we vacate the sentence and remand for re-sentencing in

the context of the now-advisory Guidelines regime.18


   17
    Under Booker,

        [a]ny fact (other than a prior conviction) which is necessary to support a sentence
        exceeding the maximum authorized by the facts established by a . . . jury verdict
        must be admitted by the defendant or proved to a jury beyond a reasonable doubt.

Booker, 543 U.S. at 243 (2005) (affirming Apprendi v. New Jersey, 530 U.S. 466, 490
(2000)). Moreover, Booker rendered the Guidelines scheme advisory. Id. at 245.
   18
     We note that the two-level enhancement increased Suggs’s sentence beyond the
sentence he would have received without a finding that he made a death threat in
connection with the robbery. However, we also note that the enhancement did not
increase the sentence beyond the statutory maximum, which would have been a fatal
Sixth Amendment violation under Booker. Here, the statutory maximum term of
imprisonment for each of the counts on which Suggs was convicted for robbery is 20
years (240 months). 18 U.S.C. 2113(a). The enhanced offense level placed Suggs in a
Guidelines range of 92 to 115 months, and the Court sentenced him to 110 months’
imprisonment—all of which are below the statutory maximum. See United States v.

                                             26
                                     *   *    *   *    *

       In sum, Suggs’s challenges to his conviction fail. He has neither demonstrated

that the evidence was insufficient to support his conviction, nor that the trial was fraught

with errors, much less the type of prejudicial errors that warrant a new trial. Accordingly,

we affirm the conviction and remand only for resentencing in accordance with Booker.




Grier, 475 F.3d 556, 565 (3d Cir. 2007) (en banc).

                                             27
