     15-2147
     United States v. Thornhill

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-2147
16
17       MOBUTU THORNHILL,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Andrew Patel, Esq.,
22                                             New York, NY.
23
24       FOR APPELLEE:                         Rebecca Mermelstein (with Anna
25                                             M. Skotko on the brief),
26                                             Assistant United States
27                                             Attorneys, for Preet Bharara,
28                                             United States Attorney for the

                                                  1
 1                              Southern District of New York,
 2                              New York, NY.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Karas, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Defendant Mobutu Thornhill appeals from the judgment of
12   conviction in the United States District Court for the
13   Southern District of New York (Karas, J.), for being a felon
14   in possession of a firearm, in violation of 18 U.S.C.
15   §§ 922(g)(1) and (e). We assume the parties’ familiarity
16   with the underlying facts, the procedural history, and the
17   issues presented for review.
18
19        Thornhill argues that the district court improperly
20   allowed a lay witness to offer expert testimony concerning
21   the identification of the weapon in violation of Rule 701 of
22   the Federal Rules of Evidence. Because the defendant did
23   not object in the district court, our review is limited to
24   plain error. See United States v. Edwards, 342 F.3d 168,
25   179-80 (2d Cir. 2003).
26
27        A lay witness, with or without specialized knowledge,
28   may testify to personal observations. See Fed. R. Evid.
29   602, 701. A witness is not offering opinion testimony
30   unless the “personal perceptions [take the] form of
31   inferences or conclusory opinions.” United States v.
32   Garcia, 413 F.3d 201, 211 (2d Cir. 2005). Here, the
33   witness’s testimony was based on his first-hand
34   observations, i.e., that he saw the defendant with what
35   appeared to him to be a “22 long rifle target pistol.”
36   App’x at 191. The witness testified that he recognized the
37   gun based on his previous work as a regiment weapons officer
38   for an army unit in the Jamaica Defense Force. Because this
39   testimony was based on his personal observations informed by
40   his personal life experiences, it was appropriate lay
41   testimony and did not require qualification under Rule 702.
42   See Fed. R. Evid. 701 advisory committee’s note to 2000
43   amendment (observing that lay witness could testify that
44   substance appeared to be narcotic based on personal life
45   experience; United States v. Brewer, 36 F.3d 266, 271 (2d
46   Cir. 1994) (approvingly referencing lay witness describing


                                  2
 1   fire arm as “machine gun”). Accordingly, the defendant’s
 2   challenge to the admission of this testimony fails.
 3
 4        For the foregoing reasons, and finding no merit in the
 5   defendant’s other arguments, we hereby AFFIRM the judgment
 6   of the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




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