                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                        No. 17-1902
                                       _____________

                           UNITED STATES OF AMERICA

                                             v.

                                  CORY D. FOSTER,
                                              Appellant
                                   _____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. No. 2-15-cr-00485-001)
                        District Judge: Hon. Mark A. Kearney
                                   _______________

                                        ARGUED
                                       March 13, 2018

            Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges

                            (Opinion Filed: May 23, 2018)
                                  _______________

Karl D. Schwartz [ARGUED]
P.O. Box 8846
Elkins Park, PA 19027
      Counsel for Appellant

Louis D. Lappen
Robert A. Zauzmer
Eric B. Henson [ARGUED]
Office of the United States Attorney
615 Chestnut Street – Ste. 1250
Philadelphia, PA 19106
      Counsel for Appellee
                                     _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Cory Foster appeals from federal robbery, carjacking, and firearm offense

convictions. Because we agree with the District Court that any trial errors were harmless

and that Foster was appropriately sentenced under the Armed Career Criminal Act (the

“ACCA”), we will affirm.

I.     BACKGROUND

       Over a three-week period in late 2014, Foster and an accomplice robbed three gas

station convenience stores at gunpoint. They used a similar modus operandi during each

robbery. First, they would enter the store at night wearing masks and gloves, with Foster

carrying a gun. Second, Foster and his accomplice would force the employee working

the cash register to open it. [Third, they would usher the employee into a back room,

force the employee to turn over personal valuables, and kick, punch, or confine the

employee. Last, Foster and his accomplice would steal cigarettes and the cash from the

register before departing.

       During the third robbery, Foster and his accomplice made off with more than cash

and cigarettes – they also stole a car. As the robbery was underway, a customer named

David Borkowski entered the store to find Foster pointing a gun at him. Foster and his


       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
                                              2
accomplice forced Borkowski into a back room and bound his hands and feet. They

asked Borkowski for his wallet, and he replied that it was in his car. Foster or his

accomplice then asked for Borkowski’s keys. Borkowski replied that he left them in the

ignition. Foster then stole Borkowski’s silver Honda Accord and his accomplice drove

off in a blue Chrysler Concorde.

       Foster was arrested in Delaware on February 6, 2015, as a result of police

following a tip that the stolen Accord had been observed at the Branmar Plaza Shopping

Center in Wilmington. During the course of that arrest, State Troopers observed a

handgun fall out of his left hand.1 When they searched Foster, they confiscated keys to

the stolen car, gloves, and a black knit cap. A search of the stolen car revealed more

gloves, multiple rolls of duct tape, a lighter, a backpack, and Borkowski’s wallet.

       Foster was indicted in the United States District Court for the Eastern District of

Pennsylvania and charged with three counts of Hobbs Act robbery in violation of 18

U.S.C. § 1951(a); one count of carjacking in violation of 18 U.S.C. § 2119; and four

counts of using, carrying, and brandishing a firearm during and in relation to a crime of

violence in violation of 18 U.S.C. § 924(c)(1).2

       At trial, the government’s case-in-chief relied on cell phone location data, items

recovered during and after Foster’s arrest, a description of the getaway cars used by

       1
         Foster was separately charged and convicted in the United States District Court
for the District of Delaware for unlawful firearm possession by a felon. He has
challenged his conviction and sentence in that case in a separate appeal. See United
States v. Foster, No. 16-3650 (3d Cir.).
       2
        Foster was also charged under 18 U.S.C. § 2 with aiding and abetting one of the
firearm charges, all three robbery charges, and the carjacking charge.
                                             3
Foster and his accomplice, surveillance footage from each convenience store, and

testimony by eyewitnesses and investigating officers. The cell phone location data

showed that Foster’s cell phone was within the vicinity of each robbery at the time each

took place. The handgun that the state troopers recovered during Foster’s arrest in

Delaware was shown to the four victims, and each testified that it resembled – at least in

size and color – the gun used during the three robberies. Borkowski testified that neither

the handgun, rolls of duct tape, nor gloves were in his car before Foster stole it. As to the

getaway car used in at least one of the robberies, an officer testified that the dark blue

Chrysler Concorde belonged to Foster’s sister. That same car was driven by Foster when

he arrived at the third robbery to case the location hours before the robbery occurred.

       Eyewitnesses and three investigating officers narrated the surveillance footage of

each robbery as it was shown to the jury. The eyewitnesses – the three convenience store

employees and Borkowski – testified to the similar physical characteristics possessed by

the taller, handgun-wielding perpetrator present at each robbery. While narrating the

video, one witness began to opine about the robber’s state of mind. Foster objected,

prompting the following response from the Court: “Sustained, Sir. You can’t – sustained.

Strike the question. You don’t know what the defendant is thinking. Or excuse me, you

don’t know what anyone is thinking in the video other than yourself. Strike my reference

to any person.” (App. at 85.)

       As the surveillance footage was shown to the jury, the three investigating officers

explained that the robbers used similar tactics during each robbery and observed that the

gun-wielding robber depicted in each video possessed the same size and build, a

                                              4
distinctive nose and similar gait, and wore similar clothing. Two officers who had

viewed all three videos identified the gun-wielding robber as Foster. The third officer,

who had viewed only videos from two of the robberies, concluded that it was the same

individual in both videos. Foster objected to each officer’s testimony. The Court

responded to one such objection by stating, “Overruled. Lay opinion, testimony credible.

Overruled.” (App. at 101.)

       Foster’s sister and his probation officer also testified as to the similarity, or lack

thereof, between the gun-wielding perpetrator in the surveillance footage and Foster. His

probation officer affirmatively identified Foster as the gun-wielding perpetrator, pointing

to similarities between the robber and Foster’s skin tone, wide nose, unique gait, height,

and weight. Foster’s sister, in contrast, testified that the person in the videos was not her

brother because that person had a different “physique.” (App. at 154.) She nevertheless

acknowledged that, in at least one of the videos, the robber shared some physical

characteristics with her brother.

       The jury convicted Foster on all counts. Before sentencing, Foster filed a motion

to dismiss the four firearm counts, arguing that Hobbs Act robbery and carjacking are not

crimes of violence under 18 U.S.C. § 924(c)(3)(A).3 The District Court denied the


       3
         Section 924(c)(1)(A) is a substantive offense that imposes strict mandatory
minimum sentences on “any person who, during and in relation to any crime of violence
…, uses or carries a firearm[.]” 18 U.S.C. § 924(c)(1)(A). It defines a “crime of
violence,” in relevant part, as “an offense that is a felony and … has as an element the
use, attempted use, or threatened use of physical force against the person or property of
another[.]” Id. § 924(c)(3)(A). That subsection is not to be confused with § 924(e),
which is purely a sentence-enhancing provision.

                                               5
motion because it determined that both types of offenses qualified as crimes of violence

under § 924(c). The Court sentenced Foster to a 714-month term of imprisonment,

ordered him to pay $10,890 in restitution, and imposed a $700 special assessment.4

       Foster appeals his conviction. He challenges the District Court’s admission of the

officers’ video narration testimony, certain comments by the District Court, and the

sufficiency of the evidence supporting his carjacking conviction.5

II.    DISCUSSION6

       A.     The District Court’s Erroneous Admission of Law Enforcement
              Officer Testimony Was Harmless.

       Under Federal Rule of Evidence 701, a lay witness offering opinion testimony

must limit his testimony to that which is “(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in

issue; and (c) not based on scientific, technical, or other specialized knowledge within the


       4
        At sentencing, the government agreed to withdraw one of the firearm counts to
lessen Foster’s statutory sentence. Including that additional count would have raised the
mandatory minimum by twenty-five years.
       5
         Foster also challenges the District Court’s determination that Hobbs Act robbery
and carjacking are crimes of violence under § 924(c) of the ACCA. But he concedes that
our decision in United States v. Robinson, 844 F.3d 137 (3d Cir. 2016), establishes that
his Hobbs Act robbery conviction, and by the same reasoning, his carjacking conviction,
can serve as predicate offenses for purposes of his § 924(c) convictions because he was
contemporaneously convicted of a firearm offense. We agree and note that Foster has
raised that issue only for issue preservation purposes. As such, we will not address it any
further. Because Foster concedes that Robinson forecloses his § 924(c) challenge, we
also decline to address his argument that the “residual clause” of § 924(c)(3)(B) is void
for vagueness.
       6
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                             6
scope of Rule 702.” Fed. R. Evid. 701. An opinion only qualifies as helpful under Rule

701(b) “if it aids or clarifies an issue that the jury would not otherwise be as competent to

understand.” United States v. Fulton, 837 F.3d 281, 292 (3d Cir. 2016) (quoting Lauria

v. Nat’l R.R. Passenger Corp., 145 F.3d 593, 600 (3d Cir. 1998)). The government here

concedes Rule 701 error under our holding in United States v. Fulton, agreeing that the

officers’ video narration testimony opining on shared physical characteristics between

Foster and the perpetrators was improper. See id. at 298-300 (holding officers’ video

narration testimony comparing the defendant to the subjects on a surveillance video

unhelpful when the officers lacked sufficient familiarity with the defendants before trial).

Thus, our inquiry turns on whether the District Court’s Fulton error was harmless.

       Harmless error is “[a]ny error, defect, irregularity, or variance that does not affect

substantial rights[.]” Fed. R. Crim. P. 52(a). We have said that an erroneous

“evidentiary ruling is harmless when it is highly probable that the error did not affect the

result.” United States v. Duka, 671 F.3d 329, 349 (3d Cir. 2011) (alterations and internal

quotation marks omitted) (quoting United States v. Friedman, 658 F.3d 342, 352 (3d Cir.

2011)). “High probability means that we have a sure conviction that the error did not

prejudice the defendants.” Id. (quoting United States v. Casseus, 282 F.3d 253, 256 (3d

Cir. 2002)). “We may not simply conclude that it is more likely than not that the error

was harmless. On the other hand, we may be firmly convinced that the error was

harmless without disproving every ‘reasonable possibility’ of prejudice.” United States

v. Mathis, 264 F.3d 321, 342 (3d Cir. 2001) (quoting United States v. Jannotti, 729 F.2d

213, 220 n.2 (3d Cir. 1984)). “The burden of demonstrating such high probability lies

                                              7
with the government.” Id. at 342. In making that determination, we consider the error

contextually within “the record as a whole.” United States v. Stadtmauer, 620 F.3d 238,

266 (3d Cir. 2010) (quoting United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir.

1995)).

       Here, given the overwhelming evidence at trial implicating Foster in each crime,

we have a sure conviction that Foster was not prejudiced by the Fulton error. Foster’s

probation officer positively identified Foster as the gun-wielding robber; cell phone

records placed Foster in proximity to the robberies at the time they occurred; and when

finally caught after evading arrest, Foster possessed Borkowski’s car, Borkowski’s

wallet, a handgun, and various items commonly used when perpetrating a robbery.

Moreover, evidence established that Foster drove his sister’s car to case the third

convenience store hours before the robbery occurred, and police had observed that car in

close proximity to the first robbed convenience store. That car also matched the physical

description of the getaway car used by Foster’s accomplice during the third robbery. In

light of that evidence, the District Court’s admission of the officers’ identification

testimony was harmless.7




       7
         Despite our determination that the error was harmless under the circumstances of
this case, we underscore the Fulton error and trust that the government will not introduce
similar law enforcement officer testimony in future criminal trials.

                                              8
       B.     The District Court’s Remarks Were Not Reversible Error.8

       We evaluate a district court’s allegedly prejudicial remarks for undue influence on

the jury. United States v. Stevenson, 832 F.3d 412, 430 (3d Cir. 2016); United States v.

Olgin, 745 F.2d 263, 268-69 (3d Cir. 1984). To determine whether a judge’s comments

unduly influenced a jury, we apply a “four-factor ‘sliding scale’ test,” Stevenson, 832

F.3d at 430 (citation omitted), which considers “the materiality of the comment, its

emphatic or overbearing nature, the efficacy of any curative instruction, and the

prejudicial effect of the comment in light of the jury instruction as a whole,” Olgin, 745

F.2d at 268-69.

       Foster challenges two remarks made at trial. The first is a remark made by the

Court after ruling on an objection to an eyewitness’s testimony: “Sustained, Sir. You

can’t -- sustained. Strike the question. You don’t know what the defendant is thinking.

Or excuse me, you don’t know what anyone is thinking in the video other than yourself.

Strike my reference to any person.” (App. at 85.) Foster argues that comment was

prejudicial because the jury could have construed the Court’s remark as identifying


       8
         Because Foster challenges the District Court’s alleged misstatements for the first
time on appeal, we review for plain error. United States v. Stevenson, 832 F.3d 412, 430
(3d Cir. 2016). Under plain error review, an appellate court can correct an error not
raised at trial where (1) the district court erred; (2) the error was clear or obvious; and
(3) the “error ‘affected the appellant’s substantial rights,’” which typically means that
there is a reasonable probability that the error affected the outcome of the proceedings.
United States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). If those three conditions are met, we then have
discretion to remedy the error, and we exercise this discretion “only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting
Puckett, 556 U.S. at 135 (alteration omitted)).

                                             9
Foster as one of the perpetrators. Foster contends that, given its materiality and

emphasis, no curative instruction could have fully ameliorated the remark’s prejudicial

effect. We disagree.

       The District Court’s remark did not unduly influence the jury because the

mistaken comment was immediately addressed by the District Court’s curative

instruction – “strike my reference to any person” – and by the jury instructions read as a

whole. (App. at 85.) Indeed, the jury instructions repeatedly told the jury to disregard

any comments the Court may have made during trial and emphasized to the jury its

unique role as the factfinder. See United States v. Gaines, 450 F.2d 186, 190 (3d Cir.

1971) (no undue influence where trial judge informed the jury six times during charge

that it had to make the ultimate adjudication in the case). Accordingly, the District

Court’s use of the phrase “the defendant” cannot fairly be seen as an undue influence on

the jury, and Foster has not shown plain error.

       The second remark Foster takes issue with is the District Court’s response to one

of his evidentiary objections to a law enforcement officer’s testimony. The Court stated,

“Overruled. Lay opinion, testimony credible. Overruled.” (App. at 101.)

       Again, the District Court’s remark was not an undue influence on the jury. To the

extent Foster argues that the comment was material or emphatic because it vouched for

the officer’s credibility, the context shows otherwise. The discussion demonstrates that

the District Court simply chose the wrong word – “credible” rather than “admissible” –

when attempting to explain why the officer’s testimony was allowed. See Stevenson, 832

F.3d at 430 (finding no undue influence because “the context of the exchange”

                                             10
demonstrated that the court did not vouch for a witness); Olgin, 745 F.2d at 269

(explaining that a comment is material if it refers to a matter “central to the defense” and

emphatic if “a jury may accept [it] as controlling” (citation omitted)).

       Even if the comment had raised the specter of prejudice for lack of an immediate

cure, the Court’s thorough charge reminded the jurors of their roles as final arbiters of

credibility. See Stevenson, 832 F.3d at 431 (explaining that if a comment crossed the line

“any error would have been ameliorated by the judge’s thorough instructions”).

Accordingly, Foster cannot demonstrate that the Court’s use of the word “credible”

unduly influenced the jury and, as a result, he has not shown plain error.

       C.       There Was Sufficient Evidence to Conclude That Foster Committed
                Carjacking.

       As to the carjacking count of conviction, we review Foster’s sufficiency of the

evidence claim for plain error because he failed to challenge the sufficiency of the

evidence or move for a judgment of acquittal in the District Court.9 United States v.

Burnett, 773 F.3d 122, 135 (3d Cir. 2014). Plain error requires us to review “only for a

manifest miscarriage of justice—the record must be devoid of evidence of guilt or the

evidence must be so tenuous that a conviction is shocking.” Id. (quoting United States v.

Avants, 367 F.3d 433, 449 (5th Cir. 2004)). “Such an error requires a defendant to

establish that the trial judge and prosecutor were derelict in even permitting the jury to

deliberate.” Id.




       9
           The standard of review for plain error is set forth supra, n.8.
                                               11
       In evaluating a sufficiency of the evidence claim, we view “the evidence in the

light most favorable to the prosecution, [and determine whether] any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Id.

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson, 443 U.S. at

319)). We “must be ever vigilant ... not to usurp the role of the jury by weighing

credibility and assigning weight to the evidence, or by substituting [our] judgment for

that of the jury.” Id. (quoting United States v. Caraballo-Rodriguez, 726 F.3d 418, 430

(3d Cir. 2013) (en banc)).

       A conviction for carjacking under 18 U.S.C. § 2119 requires the government to

prove “that the defendant (1) with intent to cause death or serious bodily harm (2) took a

motor vehicle (3) that had been transported, shipped or received in interstate or foreign

commerce (4) from the person or presence of another (5) by force and violence or

intimidation.” United States v. Applewhaite, 195 F.3d 679, 685 (3d Cir. 1999) (quoting

United States v. Lake, 150 F.3d 269, 272 (3d Cir. 1998)). The intent described in element

(1) requires a “nexus between the assault and the taking [of the car].” Id.

       Here, Foster argues that the evidence did not show a nexus between the robbers’

assault on Borkowski and the subsequent taking of his car because “Borkowski felt

threatened, and only offered the robbers his car to placate them and hasten their

departure[.]” (Opening Br. at 47-48.) That argument certainly does not meet the high bar

of plain error review. When viewed in the light most favorable to the government,

Borkowski’s testimony establishes the nexus Applewhaite requires: the perpetrators asked



                                            12
Borkowski for his keys while wielding a handgun and after binding his hands and feet.

That testimony alone is sufficient to sustain Foster’s carjacking conviction.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the judgment of conviction.




                                            13
