United States v. Romel Anthony ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3812
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UNITED STATES OF AMERICA
v.
ROMEL ANTHONY
a/k/a “DAME”
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cr-00180-014)
District Judge: Honorable Mitchell S. Goldberg
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 15, 2021
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Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges.
(Opinion filed: November 15, 2022)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PHIPPS, Circuit Judge.
Romel Anthony appeals his conviction for attempted possession with the intent to
distribute cocaine and his resulting 125-month prison sentence. In contesting his
conviction, he challenges the sufficiency of the government’s evidence at trial as well as
two evidentiary rulings related to cell phone records. He also contends that the District
Court erred in its determination of the quantity of cocaine that Anthony and others
attempted to steal and distribute. Although the government correctly concedes error as to
one of the evidentiary rulings, it was harmless, and Anthony’s other arguments do not
succeed. Thus, for the reasons elaborated below, we will affirm Anthony’s conviction
and sentence.
BACKGROUND
Six men hatched a plan to steal several kilograms of cocaine from the home of a
suspected North Philadelphia drug dealer. Three of them would enter from a roof
skylight, while three others would simultaneously serve as lookouts, using police
scanners, walkie-talkies, and cell phones to alert the intruders if the police arrived. In
addition to stealing the cocaine, the men aspired to resell it and divide the proceeds.
That brazen plot failed. While on the roof, the intruders received warnings from
the lookouts that the police were coming. The intruders fled the roof but were quickly
apprehended a few blocks away. The lookouts escaped.
But the police eventually tracked down the missing lookouts – one by one. After
one of the lookouts was identified, he along with one of the intruders identified then
thirty-nine-year-old Romel Anthony as another lookout. For his role in that scheme, a
grand jury indicted Anthony for attempted possession with the intent to distribute
cocaine. See 21 U.S.C. §§ 841(b)(1)(C), 846; see also 18 U.S.C. § 3231 (providing
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federal district courts with jurisdiction over cases involving offenses against the laws of
the United States). Following a trial, a jury convicted Anthony of attempted possession
with the intent to distribute cocaine, 1 and the District Court imposed a prison sentence of
125 months. Anthony timely appealed that conviction and sentence, bringing this matter
within this Court’s appellate jurisdiction. See 28 U.S.C. § 1291; 18 U.S.C. § 3742(a).
DISCUSSION
On appeal, Anthony raises four issues. He challenges the sufficiency of the
government’s evidence of his guilt, and he also contends that the District Court erred in
two evidentiary rulings at trial. Finally, he disputes the District Court’s finding of the
quantity of cocaine used to calculate the Guidelines Range for his 125-month prison
sentence. Anthony cannot prevail on any of those arguments.
A. Sufficient Evidence Supports Anthony’s Conviction.
Anthony attacks the overall sufficiency of the evidence used to convict him. In
evaluating a challenge to the sufficiency of the evidence, a reviewing court assesses the
record “in the light most favorable to the prosecution,” to determine if “any rational trier
of fact could have found proof of guilt[] beyond a reasonable doubt.” United States v.
Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc) (alteration in original)
(internal citation and quotation marks omitted); Jackson v. Virginia, 443 U.S. 307, 318–
19 (1979) (articulating same legal standard). The reviewing court does not sit “as a
thirteenth juror,” and the verdict “must be upheld as long as it does not ‘fall below the
threshold of bare rationality.’” Caraballo-Rodriguez, 726 F.3d at 431 (quoting Coleman
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The government also charged Anthony with aiding and abetting the use or carry of a
firearm during a crime of violence, see 18 U.S.C. §§ 2, 924(c)(1)(A), but the jury
acquitted Anthony of that count.
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v. Johnson, 566 U.S. 650, 656 (2012) (per curiam)). The jury’s verdict in this case clears
that standard by a wide margin.
A rational juror could rely on testimony from either cooperating witness to convict
Anthony. See United States v. Perez, 280 F.3d 318, 344 (3d Cir. 2002) (explaining that
accomplice testimony, standing alone, is sufficient to sustain a conviction); United States
v. De Larosa, 450 F.2d 1057, 1060 (3d Cir. 1971) (same). Those two witnesses
implicated Anthony directly and in no uncertain terms. The first cooperating witness
testified that Anthony, armed with a police scanner, acted as a lookout, ready to alert the
others if the police arrived. The second cooperating witness testified similarly; he said
that Anthony remained in constant contact with his accomplices, prepared to alert them if
the police arrived. Both witnesses further testified that Anthony attended the prior
planning meetings and thus knew that the group aimed to steal and resell drugs.
In addition, records of cell phone communications bolstered the case against
Anthony. For the communications between cell phones to be probative, the government
had to associate certain cell phones with specific individuals. The government was able
to do this in part because law enforcement seized three of the six men’s cell phones – but
not Anthony’s – as part of a related investigation. And the contact information on those
phones associated certain phone numbers with specific persons, including Anthony.
Having associated a cell phone with its user, the call records indicated not only frequent
contact between Anthony and the intruders in the hours before the break-in, but also a
call from Anthony – who had a police scanner – to an intruder 26 seconds after the police
dispatched to the scene. This evidence too, if construed in the light most favorable to the
government, would allow a rational juror to conclude that Anthony violated the federal
drug laws.
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In sum, the testimony of the two cooperating witnesses and the records of cell
phone communications – either in combination or in isolation – provided a basis for a
rational jury to find that Anthony acted as a lookout and is guilty of the attempted drug
offense. See, e.g., United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997) (affirming
conviction of defendant who served as a lookout to a drug transaction).
B. The Non-Percipient Testimony From a Lay Witness Was Harmless.
Anthony’s first evidentiary challenge is his strongest argument. He objected at
trial because the officer who testified that certain cell phones belonged to specific persons
did not personally seize the cell phones; instead, that officer learned who the cell phones
belonged to from another officer. As the government now concedes, Anthony was
correct. The officer’s non-percipient testimony should not have been permitted: a lay
witness cannot testify to the truth of information learned from a third party. Compare
Fed. R. Evid. 602 (requiring personal knowledge for lay witness testimony), and Fed. R.
Evid. 701(a) (limiting lay witness opinion testimony to opinions “rationally based on the
witness’s perception”), with Fed. R. Evid. 703 (permitting expert witnesses to testify
based on learned facts or data as long as “experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject”); 2 Kenneth S.
Broun et al., McCormick on Evidence § 247 (8th ed. 2022) (explaining where the witness
could “only have spoken from conjecture or report of other persons, the proper objection
is not hearsay but want of personal knowledge”).
But under the harmless error doctrine, not all evidentiary errors warrant reversal.
See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (explaining that error is
“virtually inevitable” and that “the central purpose of a criminal trial is to decide the
factual question of the defendant’s guilt or innocence”); Gov’t of the V.I. v. Toto,
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529 F.2d 278, 284 (3d Cir. 1976) (adopting the “middle ground” approach to harmless
error set forth in Roger J. Traynor, The Riddle of Harmless Error 35 (1970)); see also
Traynor, supra, at ix (“The well-being of the law encompasses a tolerance for harmless
errors adrift in an imperfect world.”). For an evidentiary error to be harmless, it must be
“highly probable that the improperly admitted evidence did not contribute to the jury’s
judgment of conviction.” United States v. Lopez, 340 F.3d 169, 177 (3d Cir. 2003)
(internal citation and quotation marks omitted); United States v. Vosburgh, 602 F.3d 512,
539–40 (3d Cir. 2010) (applying this same harmless error standard to evaluate the
erroneous admission of hearsay).
Here, the government has met its burden to establish that the error did not
contribute to the jury’s judgment of conviction. See United States v. Vazquez, 271 F.3d
93, 100 (3d Cir. 1993) (citing United States v. Olano, 507 U.S. 725, 734–35 (1993))
(explaining that the government has the burden of proving harmless error). As explained
above, the government’s case at trial relied chiefly on the testimony of two cooperating
witnesses, who directly implicated Anthony. And the now-conceded evidentiary error
has no bearing on the cooperators’ testimony, which provided an independent and
sufficient ground for Anthony’s conviction. In addition, other record evidence would
allow a jury to conclude which cell phone belonged to each person. Specifically, the
seized cell phones contained an email address and contact lists that allowed the jury to
identify specific phone numbers as belonging to Anthony’s co-defendants. This other
evidence – the direct testimony regarding Anthony’s guilt and the alternative basis of
associating certain cell phones with specific users – renders any evidentiary error
harmless as it is “highly probable that the improperly admitted evidence did not
contribute to the jury’s judgment of conviction.” Lopez, 340 F.3d at 177 (internal citation
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and quotation marks omitted); see also United States v. McGlory, 968 F.2d 309, 337 (3d
Cir. 1992) (explaining that “other evidence” presented to the jury may establish the
erroneously admitted fact, thus rendering the error harmless); Vosburgh, 602 F.3d at 540(same); United States v. Straker, 800 F.3d 570, 602, 607 (D.C. Cir. 2015) (holding that
conceded Bruton error was harmless where two cooperators and cell phone evidence
provided “overwhelming evidence” of the defendant’s guilt). 2
C. Admission of Summary Charts and Related Testimony Associating a Phone
Number with Anthony Do Not Provide a Basis for Overturning the Jury’s
Verdict.
Anthony’s other evidentiary objection also relates to the admission of evidence
associating Anthony with a certain cell phone number. A federal agent prepared two
summary charts that diagrammed cell phone communications on the day of the break-in.
Each chart included the name and photograph of each person associated with a phone
number, and Anthony’s name and photo appeared next to one phone number. The agent
also testified that she believed the cell phone number on the chart belonged to Anthony.
Anthony objected to this attribution. 3
In response, the District Court ensured that a basis existed in the record evidence
for associating the cell phone number with Anthony. Satisfied that the attribution could
be proved by evidence in the record, the District Court overruled that objection, permitted
the testimony, and admitted the summary chart into evidence. It also instructed the jury
that it could disregard the agent’s attribution and the summary charts.
2
As a related contention, Anthony argues that the government failed to authenticate the
cell phone evidence, as the testifying officer did not have firsthand knowledge of the
seizure. See Fed. R. Evid. 901. But other trial evidence provided a basis for
authenticating the cell phone evidence, see generally Fed. R. Evid. 901(b) (discussing the
various ways to authenticate evidence), and for the same reasons as the underlying
objection, even if there were an authentication error, it would be harmless.
3
Anthony did not object to the agent’s attribution of phone numbers to other defendants.
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A district court has a great deal of discretion over the use of summary charts and
associated testimony. Under the Federal Rules of Evidence, a trial judge “should
exercise reasonable control over the mode and order of examining witnesses and
presenting evidence so as to . . . make those procedures effective for determining the truth
[and] avoid wasting time.” Fed. R. Evid. 611(a). Consistent with that standard, this
Court has approved the use of summary charts and corresponding explanatory testimony.
See, e.g., United States v. Jarmon, 14 F.4th 268, 273 (3d Cir. 2021) (permitting testimony
describing an organizational “chart prepared by the prosecution showing the
Government’s theory” of a criminal enterprise). Here, after confirming a factual basis for
the attribution of the cell phone number to Anthony, the District Court instructed the jury
that it did not have to believe the attribution on the summary chart. See Trial Tr. at
120:12–16 (June 8, 2018) (App. 925) (“The charts themselves are not evidence or proof.
If the charts do not correctly reflect the evidence in the case, you should disregard them
and determine the facts from the underlying evidence.”). Allowing the summary chart
under these circumstances was not an abuse of discretion.
But also over Anthony’s objection, the District Court permitted the agent to
provide her opinion that the cell phone number on the chart belonged to Anthony.
Because that lay opinion was not “rationally based on the witness’s perception,” it should
not have been permitted. Fed. R. Evid. 701(a). Nonetheless, that error was harmless. As
the District Court determined before allowing the summary chart, other evidence in the
record supported the conclusion that the cell phone number belonged to Anthony. Also,
as with his first evidentiary objection, the case against Anthony did not depend solely
upon the cell phone records – two cooperating witnesses testified to his involvement in
the plot to steal and redistribute cocaine. See United States v. Mitchell, 816 F.3d 865,
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877 (D.C. Cir. 2016) (holding that error regarding summary testimony connecting a
phone number to the defendants was harmless); United States v. Dukagjini, 326 F.3d 45,
62 (2d Cir. 2003) (holding that error regarding case agent testimony was harmless where
multiple cooperating witnesses “testified extensively” as to defendant’s guilt); United
States v. Garcia, 413 F.3d 201, 217–19 (2d Cir. 2005) (same). Accordingly, as an error
that did not, to a high probability, contribute to the jury’s verdict, the admission of the
agent’s improper lay opinion does not justify setting aside Anthony’s conviction.
D. Anthony’s Base Offense Level Was Not Clearly Erroneous.
Anthony also challenges the calculation of the base offense level for his sentence.
The District Court assigned him a base offense level of 24 on the finding that he
attempted to possess with the intent to distribute at least 500 grams of cocaine. See
U.S.S.G. § 2D1.1(c)(8). Anthony objected, claiming that the amount of cocaine was
speculative because the police never recovered any cocaine.
On clear error review, the District Court’s finding must be upheld. See United
States v. Rodriguez, 40 F.4th 117, 120 (3d Cir. 2022). At sentencing, a district judge may
estimate drug quantities if in doing so, he or she relies on information that has “sufficient
indicia of reliability to support its probable accuracy.” United States v. Paulino, 996 F.2d
1541, 1547 (3d Cir. 1993) (quoting U.S.S.G. § 6A1.3(a)). And here, both cooperating
witnesses testified that the group planned to steal multiple kilograms of cocaine. That
suffices, and the District Court did not clearly err in finding that the quantity of cocaine
was at least 500 grams.
***
For the foregoing reasons, we will affirm the judgments for Anthony’s conviction
and sentence.
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