                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 12-1642
                                ________________

                         UNITED STATES OF AMERICA

                                         v.

                                 AARON SMITH,

                                           Appellant
                                ________________

                    Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                   (D.C. Criminal Action No. 2-10-cr-00489-002)
                     District Judge: Honorable Juan R. Sanchez
                                 ________________

                              Argued November 1, 2012

             Before: SLOVITER, AMBRO, and BARRY, Circuit Judges

                        (Opinion filed: November 30, 2012)

Mark S. Greenberg, Esquire (Argued)
LaCheen Wittels & Greenberg
1429 Walnut Street
Suite 1301
Philadelphia, PA 19102-0000

      Counsel for Appellant

Zane David Memeger
Robert A. Zauzmer
Salvatore L. Astolfi
Bernadette A. McKeon, Esquire (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

       Counsel for Appellee

                                     ________________

                                         OPINION
                                     ________________

AMBRO, Circuit Judge

       Aaron Smith was convicted of conspiracy to interfere with interstate commerce by

robbery, and interference with interstate commerce by robbery, in violation of 18 U.S.C.

§ 1951(a), and using and carrying a firearm during and in relation to a crime of violence

in violation of 18 U.S.C. § 924(c). He was sentenced to 360 months’ imprisonment.

       Smith appeals two evidentiary decisions made by the District Court during his

trial: (1) the denial of his motion to suppress a witness identification, and (2) the

inclusion of testimony about his past infractions at a halfway house where he was

residing at the time of the robbery. Although we hold that the identification testimony

was properly admitted, we conclude that the Court should not have admitted the

infraction testimony and this error was not harmless.

                                    I.      Background

       Around 10:00 a.m. on October 27, 2008, the Fox and Hound restaurant in

Philadelphia was robbed. While one robber, a taller, heavier-set man—later identified as

Omar Hopkins—led restaurant manager Lenny Lowe at gunpoint into a back office to get

money from the restaurant safe, a second robber took employees Valin Barfield and


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Tyrone Jenkins, and later delivery person Adam Conley, to the same office and tied them

with duct tape.

       Hopkins was arrested shortly after the robbery and cooperated with investigators,

admitting to the robbery and identifying a third participant who never entered the

restaurant. He told police that he had known both co-conspirators for only a week, and

that he knew them only as ―Snipes‖—later identified as Kareem Watson—and ―A-Dub.‖

       In 2011, police identified Smith as A-Dub based on a report that Smith went by

that nickname and in fact had ―A-Dub‖ tattooed on his arm. FBI Agent Stephen

McQueen showed two photographs of Smith to Hopkins. He identified one as A-Dub.

McQueen also created a photo array containing Smith’s photograph and showed it to

Lowe, Barfield, and Jenkins. Only Jenkins was able to identify one of the pictures as the

second robber, and identified Smith. Before trial, Smith moved to exclude Jenkins’s

identification, arguing that the identification of him in the photo array was the result of

Agent McQueen’s influence and thus unreliable. The District Court held a hearing at

which Jenkins and McQueen testified, and the motion was denied.

       At trial, Jenkins and Hopkins identified Smith as the second robber. When asked

if he was ―absolutely certain‖ that Smith was A-Dub, Hopkins responded ―[i]t look like

him, yes.‖ App. at 465. On cross-examination, however, Hopkins testified that he

identified Smith because Smith looked like the pictures he (Hopkins) was shown. On re-

direct, Hopkins reconfirmed that Smith was A-Dub, yet conceded he was struggling with

that identification because it had been so long since the robbery. At trial, Lowe, Barfield,

and Jenkins described the second robber as somewhere between 5’8‖ and 5’10‖, wearing

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tan clothing, and having some facial hair, either a goatee or sideburns. Smith is 5’11‖.

Hopkins also testified that the three robbers met at a bar on the evening of October 27 to

celebrate their success.

       In addition to contesting his involvement in the robbery, Smith presented an alibi

defense. At the time of the robbery, he was a resident at a halfway house called Kintock,

and attended job training at a facility called Connections. Kintock director Frank Guyon

testified that, on the day of the robbery, Smith had signed out of Kintock at 7:00 a.m. to

go to Connections, signed back into Kintock at 4:22 p.m., and did not sign out again that

day. Guyon also testified about Kintock’s security, which includes manned entrances and

barbed wire surrounding the property. As for the time Smith was signed out of Kintock,

Gervin Modest, a computer instructor at Connections, testified that he recorded Smith as

present in the Connections computer lab some time between 9:00 and 11:00 a.m. on the

morning of the robbery, but did not know how long Smith was at Connections that day.

Ronnie Dawson, another Connections employee, also testified that attendees were not

supposed to leave without authorization, and that unauthorized absences were

occasionally documented, but not always. Smith did not have authorization to leave

Connections on the robbery date, nor was any absence noted.

       Over Smith’s objection, the Government was permitted to elicit testimony from

Guyon that Smith had been a resident of Kintock from May to October of 2007 and again

from August 2008 to February 2009, that he was ultimately removed from the facility in

February of 2009 for failing to return to it, and that he incurred 11 incident reports during

his time there for failing to follow rules and regulations. The District Court prevented the

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Government from referencing the bases of several infractions—such as Smith’s refusal to

give a urine sample or to take a breathalyzer test, possession of a pornographic DVD, and

failure to secure a job—but permitted testimony on other infractions and the total number

of incidents. The Government also had Guyon read statements in Smith’s Kintock

records that he ―was unsuccessfully discharged from the program, due to his inability to

follow the rules and regulations,‖ ―[a]n assessment of Mr. Smith’s residency shows that

he maintained a below-average level of compliance with the policies and procedures of

the program,‖ and ―Mr. Smith’s overall adjustment was poor.‖ Id. at 533–34. The

prosecutor also asked Guyon in a leading manner whether ―it’s pretty clear . . . Mr. Smith

was pretty bad at following the rules at your program?,‖ to which Guyon responded

―[t]hat’s correct.‖ Id. at 535. The prosecutor also asked Dawson whether Smith had an

―accountability problem‖ with Connections, to which Dawson replied that, ―[b]ased on

the records that I reviewed, yes.‖ Id. at 558.

                      II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

       We review a district court’s decision to admit evidence for abuse of discretion.

United States v. Lee, 612 F.3d 170, 184 n.14 (3d Cir. 2010).




                                     III.    Discussion

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       A.     Identification Testimony

       Smith first challenges the District Court’s decision to admit Jenkins’s

identification testimony. The first question in such a challenge is whether the initial

identification procedure was unnecessarily or impermissibly suggestive. United States v.

Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991). This inquiry considers both the

suggestiveness of the identification and whether there was good reason to depart from

less suggestive procedures. Id. Only if a procedure was too suggestive need a court ask

whether it should nonetheless be admitted as reliable under the totality of the

circumstances. Neil v. Biggers, 409 U.S. 188, 199 (1972).

       Following a hearing, the District Court concluded that the initial identification

procedure used with Jenkins was not unnecessarily suggestive. Smith argues to the

contrary because Agent McQueen specifically directed Jenkins to concentrate on the

features of the face that do not change, such as the eyes, nose, and ears. Smith does not

explain how McQueen’s instruction could have directed Jenkins to Smith’s photo. Hence

the Court did not abuse its discretion by denying his motion to suppress Jenkins’s

identification testimony.

       B.     Infractions Evidence

       Smith also argues that the District Court erred by allowing testimony about his

prior bad acts at Kintock and Connections. Federal Rule of Evidence 404(b) states that

―[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character

in order to show that on a particular occasion the person acted in accordance with the

character,‖ but evidence of a crime or wrong can be admitted ―for another purpose‖ such

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as ―motive, opportunity, intent, preparation, plan, knowledge, …[or] absence of mistake.‖

Fed. R. Evid. 404(b)(1)–(2).

       Rule 404 is a rule of inclusion rather than exclusion, and evidence should be

admitted unless used merely to show propensity or disposition of the defendant to

commit the crime. United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003); United

States v. Moore, 375 F.3d 259, 264 (3d Cir. 2004). The admission of Rule 404(b)

evidence is evaluated under the Supreme Court’s four-step test: (1) the evidence must

have a proper purpose under 404(b), (2) it must be relevant, (3) its probative value must

not be outweighed by its potential for prejudicial effect, and (4) the court must charge the

jury to consider the evidence only for the limited purpose for which it is admitted.

United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (citing Huddleston v. United

States, 485 U.S. 681, 691–92 (1988)). ―A proper purpose is one that is probative of a

material issue other than character.‖ United States v. Green, 617 F.3d 233, 250 (3d Cir.

2010) (quotation omitted). Evidence is relevant if it has ―any tendency to make a fact

[that is of consequence to the determination of the action] more or less probable than it

would be without the evidence.‖ Fed. R. Evid. 401. The Government must ―clearly

articulate how that evidence fits into a chain of logical inferences, no link of which can

be the inference that[,] because the defendant committed offenses before, he therefore is

more likely to have committed this one.‖ United States v. Morley, 199 F.3d 129, 137 (3d

Cir. 1999) (quotation and alteration omitted). Where the defendant failed to request a

limiting instruction, we review the lack of such an instruction for clear error. Ansell v.

Green Acres Contracting Co., 347 F.3d 515, 526 (3d Cir. 2003).

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       The Government argues that this evidence was admissible because Smith’s alibi

rested on an assumption that he followed the attendance rules of Kintock and

Connections, and evidence of his infractions rebutted that assumption. We disagree.

Smith’s alibi was not that he abided by the attendance rules of either facility. Instead,

Smith presented the facilities’ own records to show that he was at Connections on the

morning of the robbery and at Kintock in the evening when the robbers purportedly met

at a bar. He produced testimony to show that security features prevented him from

leaving Kintock without signing out. He also introduced evidence that he was not

permitted to leave Connections without authorization, and no documentation existed that

he was authorized to leave it, or was absent without authorization, on October 27, 2008.

       The Government could—and did—produce testimony to show that it was possible

for Smith to leave Kintock or Connections without either facility knowing or

documenting his absence. But there is no proper purpose under 404(b) for admission of

evidence that Smith generally did not abide by the rules of the facilities because his alibi

was not based on his decision to follow rules, but on records of his presence. Even the

infraction most closely related to the possibility that Smith left the facilities without

authorization—that he absconded from Kintock—occurred months after the robbery and

could not have been relevant to his motive, intent, or state of mind on the day of the

robbery.

       Instead, this testimony commented directly, and negatively, on Smith’s character.

Although the District Court excluded testimony of the most prejudicial infractions, the

evidence of other infractions was still relevant only to Smith’s character, precisely the

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evidence Rule 404(b) prohibits. The descriptions from Smith’s Kintock file painted a

picture of Smith as a rule-breaker and person of poor character. Compounding the error,

there was no limiting instruction given to the jury; they may have considered this

character evidence well beyond Smith’s alibi defense in their determination of Smith’s

guilt.

         Even if the District Court erred by admitting this evidence of Smith’s bad acts, we

do not reverse a conviction if it is highly probable that the error did not contribute to the

judgment of guilt. United States v. Berrios, 676 F.3d 118, 131 (3d Cir. 2012). The

Government bears the burden of showing harmlessness. United States v. Cross, 308 F.3d

308, 326 (3d Cir. 2002). On this record, we cannot conclude that it was highly probable

the bad acts evidence did not contribute to the judgment of guilt. Evidence connecting

Smith to the robbery is far from overwhelming. It included the two identifications, one

of which was undermined on cross-examination and both of which were made years after

the robbery; the nickname ―A-Dub,‖ supplied by Hopkins, which Smith has tattooed on

his arm; and the proximity of Connections to a store Hopkins testified the robbers

shopped at before the crime. The bad acts evidence—and the inference that Smith was

essentially a bad guy—may have contributed to the jury’s determination of Smith’s guilt.

         In this context, we cannot conclude that the District Court’s error was harmless.

We thus vacate Smith’s conviction and remand the case.




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