NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-2599

_____________

UNITED STATES OF AMERICA

v.

MARCUS JONES, a/k/a J-Rock

Marcus Jones,

Appellant

_____________

On Appeal from the United States District Court for the

Eastern District of Pennsylvania

(E.D. Pa. No. 2-12-cr-00314-001)

District Judge: Honorable Joel H. Slomsky

Argued: April 9, 2018

Before: CHAGARES, VANASKIE, and FISHER, Circuit Judges.

(Filed: June 11, 2018)

Jeremy C. Gelb [ARGUED]

834 Chestnut Street

The Benjamin Franklin, Suite 206

Philadelphia, PA 19107

Counsel for Appellant

Louis D. Lappen

United States Attorney

Robert A. Zauzmer [ARGUED]

Assistant United States Attorney

Chief of Appeals

Katherine E. Driscoll

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellees
2

________________

OPINION

________________

CHAGARES, Circuit Judge.

Marcus Jones appeals his conviction by a jury for conspiracy to commit Hobbs 

Act robbery in violation of 18 U.S.C. § 1951(a), Hobbs Act robbery in violation of § 

1951(a), and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 

924(c), in relation to an armed robbery. Jones argues that the District Court violated 

Federal Rule of Evidence 404 by allowing the admission of evidence concerning another 

robbery that Jones committed and Rule 701 by allowing a lay witness to offer opinion 

testimony. We disagree, and therefore will affirm. 

I.1

We write for the parties and so recount only the facts necessary to our decision. 

Jones was arrested and charged with committing armed robberies of three Philadelphia 

stores over a ten-day period in March 2012: Peralta Grocery Store, Aya’s Pizza, and 

Golden Kingdom II Restaurant. Maleek Brown and Jonte King were likewise charged 

with robbing Peralta and Golden Kingdom, and pleaded guilty. Jones pleaded guilty to 

 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.

1 The District Court had jurisdiction under 18 U.S.C. § 3231; this Court has 

jurisdiction under 28 U.S.C. § 1291.
3

the Aya’s robbery but proceeded to trial on the Peralta and Golden Kingdom robberies. 

As part of his plea deal, Brown testified that he, King, and Jones robbed Peralta and that 

Jones had admitted that he (Jones) also robbed Aya’s and Golden Kingdom. 

At trial, Harold Brokenborough, an Aya’s employee working at the time of the 

robbery, testified that an African-American man wearing a hoodie pulled a gun on the 

clerk and stole money from the cash register before escaping. He added that he later 

identified Jones in a photo array. Victor Tejada, Peralta’s manager, testified that he was 

robbed by two African-American men, one of whom wore black shoes with a neon stripe.

The Government also presented the testimony of Philadelphia Police Detective 

Kert Wilson, who prepared a “Wanted” poster from the Aya’s surveillance video and 

took photos of the clothes Jones was wearing when he was arrested and juxtaposed them 

to images from the Peralta robbery, to show whether the seized items matched the Peralta 

robber’s clothes.

2

 Wilson testified that, in his experience, surveillance videos skew the 

colors they record, so to better determine whether Jones’ shoes matched those in the 

Peralta video, he walked through Peralta wearing the shoes and compared that video with 

the robbery video to see if the shoes’ coloring appeared the same through the medium of 

the recording. He said the comparison looked “just spot on.” Appendix (“App.”) 612.

Jones was convicted of the Peralta robbery but acquitted of the Golden Kingdom 

robbery. The District Court denied his motion for a new trial and Jones timely appealed. 

 

2

Jones was arrested wearing shoes with a neon yellow stripe and jeans with 

markings that appeared to match those of the Aya’s robber. Police noticed this similarity, 

and therefore seized the shoes and jeans to compare them to those visible in the video of 

the Aya’s robbery. 
4

II.

Jones claims that the Government introduced evidence related to the Aya’s

robbery (which Jones admitted to) in violation of Federal Rule of Evidence 404’s 

prohibition on the use of propensity evidence. Rule 404 prohibits the admission of a 

defendant’s prior crime “to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character.” Fed. R. Evid. 

404(b)(1). Such evidence, however, “may be admissible for another purpose, such as 

proving . . . identity.” Id. 404(b)(2). For evidence of past crimes to be admissible under 

Rule 404(b), it “must (1) have a proper evidentiary purpose; (2) be relevant; (3) satisfy 

Rule 403; and (4) be accompanied by a limiting instruction (where requested) about the 

purpose for which the jury may consider it.” United States v. Green, 617 F.3d 233, 249 

(3d Cir. 2010). “To meet the first requirement for admissibility, the proponents of Rule 

404(b) evidence must do more than conjure up a proper purpose — they must also 

establish a chain of inferences no link of which is based on a propensity inference.” 

United States v. Smith, 725 F.3d 340, 345 (3d Cir. 2013). We review rulings under Rule 

404 for abuse of discretion. United States v. Repak, 852 F.3d 230, 240 (3d Cir. 2017).

Jones does not challenge the evidence’s relevance, and the District Court twice 

gave the jury limiting instructions, so we consider only the test’s first and third prongs.

A.

The District Court properly allowed the Government to introduce evidence 

concerning Jones’ involvement in the Aya’s robbery for two non-propensity purposes: 

(1) to establish Jones’ identity as the Peralta robber and (2) to corroborate the credibility 
5

of Brown’s testimony identifying Jones as the Peralta robber. See Fed. R. Evid. 

404(b)(1); Green, 617 F.3d at 250 (prior bad acts admissible to bolster witness

credibility). Jones argues that the evidence nevertheless fails the 404(b) test because a 

reasonable jury informed that Jones committed another robbery in the timeframe of the 

charged robberies would infer Jones’ propensity to commit robberies, and that the jury 

here was “invited to draw” that very inference. Jones Br. 20. But this is an objection to 

Rule 404(b) itself, not its application. See, e.g., Smith, 725 F.3d at 345 (recognizing that 

“all Rule 404(b) evidence . . . will invite the jury to make inferences about [the 

defendant’s] character” but that “[t]his alone cannot lead to exclusion”). Jones does not 

claim that any link in the chain of inferences supporting the introduction of the evidence 

relies on a propensity inference. The Government accordingly established a proper 

purpose for the introduction of the Aya’s evidence, even though the jury could have 

theoretically drawn improper propensity inferences, as well.

B.

Rule 403 provides that relevant evidence may be excluded “if its probative value 

is substantially outweighed by a danger of . . . unfair prejudice.” Before admitting prior 

bad acts under Rule 404(b), district courts must — explicitly and on the record —

“balance the probative value of the proffered evidence against its prejudicial effect under 

Rule 403.” United States v. Caldwell, 760 F.3d 267, 283 (3d Cir. 2014). Where a court 

“merely recites the text” of Rule 403, we cannot infer that it properly engaged in such 

balancing, id. at 284, and must reverse unless “it is ‘apparent from the record’” that the 

evidence satisfies Rule 403, Repak, 852 F.3d at 247 (quoting Caldwell, 760 F.3d at 284).
6

Jones generally objects to the introduction of any evidence concerning the Aya’s 

robbery, but specifically focuses on the surveillance video. As to the broader objection, 

as the Government made clear at oral argument, the probative value of the evidence was 

substantial, given that it identified Jones as the Peralta robber. The District Court did not 

abuse its discretion in determining that this value was not substantially outweighed by the 

risk of unfair prejudice arising from the jury being apprised that Jones committed the 

Aya’s robbery, to which Jones had admitted. Especially given the District Court’s two 

cautionary instructions, which we presume the jury followed,

3 we have little “concern 

that the jury would have used this evidence to draw a propensity inference.” Id.

Whether admitting the surveillance videos, in particular, also satisfies Rule 403, 

however, presents a closer question. It is a matter of common sense that “probative value 

is ‘informed by the availability of alternative means to present similar evidence.’” United 

States v. Bailey, 840 F.3d 99, 122 (3d Cir. 2016) (quoting United States v. Awadallah, 

436 F.3d 125, 132 (2d Cir. 2006)). At trial, Jones argued that the Government did not 

need to show any video from Aya’s. To support the credibility of Brown, who testified 

that Jones told him that the Aya’s clerk had demanded that Jones remove his hoodie, the 

Government could have relied on the photos showing Jones in Aya’s wearing a hoodie, 

which had already been admitted into evidence. And to prove that Jones was the Peralta 

robber, by showing that the Aya’s robber (Jones) wore the same distinctive shoes as the 

 

3 This presumption is especially strong because the jury acquitted Jones of the 

Golden Kingdom robbery, indicating that it followed its instructions and did not draw the 

propensity inference that, once a robber, Jones was guilty of all the charged robberies. 
7

Peralta robber, the Government could have relied on the images and reenactment footage 

created from the shoes that police had seized from Jones upon his arrest. 

Aside from its initial statement that, as a general matter, the “probative value” of 

the video “would not be substantially outweighed by the danger of unfair prejudice,” 

App. 20, the District Court did not explicitly undertake a Rule 403 analysis in light of 

Jones’ objections. The court’s recitation of the legal standard does not indicate that it

properly engaged in weighing and so is alone insufficient to warrant our deference. See

United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992). Nevertheless, the record 

reflects the District Court’s attention to the potential prejudice involved in showing the 

videos, and we conclude that it did not err by permitting the videos’ introduction. 

For the purposes of corroborating Brown’s testimony, the Government proposed a 

lengthy clip of Jones entering Aya’s, talking with the clerk, jumping over the counter, 

and robbing the store. The District Court concluded that such a long clip would be 

“unduly prejudicial . . . especially since the defense has conceded that . . . Mr. Jones did 

the Aya’s robbery,” and limited the video to just showing Jones wearing the hoodie and 

talking to the clerk, which it concluded “does in some way support [Brown’s] 

credibility.” App. 402–03. The prejudice from the short video is not materially different 

than from the images showing Jones in a hoodie. Moreover, the video — which showed 

Jones talking to the clerk — corroborated Brown’s testimony in a way the images did not,

by showing that the clerk and Jones spoke. Its admission was proper under Rule 403.

Concerning the clip meant to show Jones’ shoes in the Aya’s robbery, in light of 

the defense’s argument that it would be prejudicial to show Jones brandishing a gun, the 
8

District Court limited the footage to showing Jones’ shoes without the gun. Although the 

clip shown to the jury depicted Jones “vaulting himself up onto the counter,” App. 457,

and despite our view that identity was equally well established by Detective Wilson’s 

reenactment video or by side-by-side photos of the shoes from each video, we conclude 

under our own plenary Rule 403 analysis that the unfair prejudice resulting therefrom did 

not substantially outweigh the video’s probative value. First, the footage of Jones 

jumping over the counter was not “the kind of highly reprehensible and offensive content 

that might lead a jury to convict because it thinks that the defendant is a bad person and 

deserves punishment, regardless of whether the defendant committed the charged crime.” 

United States v. Cunningham, 694 F.3d 372, 387 (3d Cir. 2012) (quoting United States v. 

Loughry, 660 F.3d 965, 972 (7th Cir. 2011)). With the gun redacted, the video showed 

no violence and thus was unlikely to have any more meaningfully impacted the jury than 

images taken of Jones while he committed the robbery. Second, as noted, the District 

Court twice explicitly cautioned the jury against using the evidence to establish Jones’ 

propensity to commit the charged robberies, which further minimizes the risk that the 

evidence prejudiced Jones. The video’s admission was consistent with Rule 403. Thus,

neither clip violated Rule 404.

III.

Jones also contends that Detective Wilson twice violated Rule 701 by giving 

improper opinion testimony that went to the ultimate question. First, Wilson, through an 

apparent slip of the tongue, identified the suspect in the Peralta surveillance video as “the 

defendant.” App. 606. Second, Wilson seemed to give his opinion that the depiction of 
9

the color of Jones’ shoes (worn by Wilson) in the Peralta reenactment video matched the 

color of the shoes worn by the Peralta robber in the surveillance video. We review a trial 

court’s objected-to evidentiary rulings for abuse of discretion, Green, 617 F.3d at 239, 

and conclude that the District Court did not abuse its discretion by permitting the 

challenged testimony and that, even if it did, any error was harmless.

Rule 701 permits lay witnesses to testify concerning their opinions to the extent 

that those opinions are “rationally based on the witness’s perception,” are “helpful to 

clearly understanding the witness’s testimony or to determining a fact in issue,” and are 

“not based on scientific, technical, or other specialized knowledge within the scope of 

Rule 702.” Fed. R. Evid. 701. Lay witnesses accordingly may not opine concerning 

what conclusions to draw from the facts such that the testimony “usurps the jury’s role as 

fact finder,” or offer an opinion which the witness is in no “better position than the jurors 

to form.” United States v. Fulton, 837 F.3d 281, 291–92 (3d Cir. 2016). For that reason, 

although lay witnesses are not per se barred from expressing opinions that “embrace[] an 

ultimate issue,” such testimony is improper where “its primary value is to dictate a 

certain conclusion.” Id. at 291 (quoting Fed. R. Evid. 704(a)).

Incidental to explaining the purpose of the comparison exhibit he made containing 

stills from the Peralta video and photographs of Jones’ seized clothes, Wilson improperly 

referred to the content of the Peralta video as depicting the “defendant.” Although this 

statement went to the ultimate issue at trial, it is not fair to say that “its primary value” 

was to do so. Id. From the perspective of the Government, Wilson’s stray remark had no 

value, given that it was not purposefully elicited and was never repeated. Wilson was not 
10

a case agent on the robbery but rather was brought on to recover the videos, and his 

testimony was elicited for the purpose of laying the exhibits’ foundation. His opinions 

concerning the robber’s identity were plainly of little interest to the Government, as 

evidenced by the Government’s failure to repeat any of them in closing. Nor does it 

appear to have been Wilson’s aim to tell the jury that Jones was the Peralta robber. 

Although the purpose of his exhibits was to present this inference to the jury, it was not 

his purpose when he remarked that the person in the video was the defendant to “tell the 

jury what result to reach.” Id. at 294 (quoting United States v. Garcia, 413 F.3d 201, 210 

(2d Cir. 2005)). Were that his purpose, it would be odd to convey that weighty 

conclusion layered within a description of the manner of an exhibit’s preparation. 

Concerning Wilson’s remark that the color of the shoes from his reenactment was 

“just spot on” with the color in the robbery video, the record reflects that the Government

immediately clarified that Wilson was not opining about whether the shoes were indeed 

the same, but just explaining the procedure that he undertook to make the comparison. 

When the reenactment video was played, the Government again confirmed that the 

purpose of the comparison “was just to show . . . the color of the shoe?” and Wilson 

replied that he performed the comparison because “the color represented from what’s 

recorded on the video isn’t quite represented in what’s in real life.” App. 621. Wilson 

did not thereafter opine about whether Jones’ shoes were the ones depicted in the Peralta 

video. The District Court ruled that Wilson’s “testimony doesn’t reach the point where 

he’s telling the jury that, in my opinion, [the shoes are] the same,” App. 623, and 
11

nonetheless gave the jury a limiting instruction that Wilson’s testimony was for the 

purpose of comparison only and that the ultimate decision rested with the jury. 

Jones retorts that the sole purpose of Wilson’s testimony and the comparison 

videos he prepared “was [to] tell[] the jury that the items recovered from the Defendant 

by the police were the same items depicted in the Peralta video.” Jones Br. 24. Jones 

argues that Wilson’s testimony “went to the ultimate issue” because his testimony 

“clearly communicated that the videos he created and the photographs he prepared were 

done with the purpose of demonstrating to the jury that the shoes and pants recovered 

from [Jones] by police were the same items depicted in the Peralta video.” Jones Br. 25–

26. Jones, however, fails to articulate why such a purpose would be improper. Of 

course, all testimony presented by a party has the purpose of convincing the trier of fact 

of the correctness of their position. A party may permissibly do so by presenting facts for 

the jury to consider; they may not — through lay testimony — simply tell the jury what 

result to reach. Here, in light of the prosecutor’s clarifications and the court’s limiting 

instruction, the District Court did not abuse its discretion in concluding that Wilson’s 

testimony did not stray beyond Rule 701’s limitations

Regardless, any error was harmless. An erroneous evidentiary ruling “is harmless 

error when ‘it is highly probable that the error did not affect the result.’” United States v. 

Friedman, 658 F.3d 342, 352 (3d Cir. 2011) (quoting Hill v. Laeisz, 435 F.3d 404, 420 

(3d Cir. 2006)). As noted, the first statement was isolated, incidental, and never repeated 

by the Government, while the second statement was immediately recanted and clarified; 

the District Court gave a proper limiting instruction; and the Government’s case 
12

regarding the Peralta robbery was very strong based on cooperating witnesses and video 

evidence. We have little doubt that Wilson’s comments did not affect the jury’s verdict. 

IV.

For the foregoing reasons, we will affirm.