1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0091p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

R OBBY N AKIA H ARRIS , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-1288

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:13-cr-20314—Denise Page Hood, District Judge. Argued: March 4, 2015 Decided and Filed: May 13, 2015 Before: CLAY, GILMAN, and SUTTON, Circuit Judges.

_________________ COUNSEL

ARGUED: Brandy Y. Robinson, FEDERAL DEFEND ER OFFICE, Detroit, Michigan, for Appellant. Andrew Goetz, UNI TED STATES ATTORNEY’S OFFI CE, Detroit, Michigan, for Appellee. ON BRIEF: Brandy Y. Robinson, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant. Susan E. Gill ooly, UNITED STATES AT TORNEY’S OFFICE, Detroit, Michigan, for Appellee.

_________________ OPINION

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CLAY, Circuit Judge. Defendant Robby Harri s appeals his conviction for mailing a threatening letter to United St ates Congresswoman Candice Miller , in violation of 18 U.S.C. § 876(c). At trial, the government elicited testimony from three witn esses, each of whom 

### >No. 14-1288 United States v. Harris Page 2

identified Harris as the author of the letter ba sed on their familiarity with his handwriting. On appeal, Harris argues th at the witnesses’ tes timony violated Federal Ru le of Evidence 701 and impermissibly encroached upon the jury’s du ty to determine whether Harris mailed the threatening letter. For the reasons that follow, we AFFIRM Harris’ conviction and sentence.

I.

In October 2012, the district office of United States Congresswoman Candice Miller received a threatening letter. The author of the le tter threatened, among other things, to kill Congresswoman Miller and members of her family if she did not send one million dollars. The
letter was written in distinctiv e handwriting, and the return addre ss was a residence in Pontiac, Michigan. Congresswoman Miller’s office cont acted the authorities, and the FBI began investigating.
FBI Special Agent Juan Herrera learned that the return address belonged to a woman named Cynthia Hiller. Agent Herrera interviewed Hiller, and she denied writing the letter. She explained to Agent Herrera that she believed that the letter was sent by Robby Harris, one of her neighbors in the apartment complex. Hiller provid ed Agent Herrera with two love letters that
Harris had written and ha nd-delivered to her.

Hiller received the letters from Harris about a year prior to being interviewed by Agent Herrera. She had no interest in Harris and found the letters disturbing. After receiving the second letter, Hiller went to Harris’ apartment, where he lived with his mother. She expressed to both of them that she wanted the letters to stop, and Harris’ mother assured her that they would.
Shortly thereafter, the postal carrier assigned to the apartment complex gave Hiller a threatening letter that was addressed to United States Senator Debbie Stabenow and bore Hiller’s return address. The letter and the envelope we re written in distinctive and almost illegible writing. The letter was al so signed with Hiller’s name even though Hiller denied having written or signed the letter.
Although Hiller did not recognize th e handwriting at that time, the postal carrier did. She explained to Hiller that it matched the writing of a man who was on her former postal route. Hiller then instructed her postal carrier that if she ever again saw that handwriting with Hiller’sNo. 14-1288 United States v. Harris Page 3

return address on a piece of mail, she should put it in Hiller’s mailbox rather than deliver it to the
addressee.

Hiller soon received several lett ers that she did not write but which nonetheless listed her
return address. The letters also contained si milar distinctive and nearly illegible writing. She also began to receive unsolicited magazine subscr iptions. At one point, Hiller received a letter from RBC Ministries responding to an inquiry in which someone purporting to be Hiller claimed that she was a prostitu te and needed help.
Theresa Conner-Orsette (“Orsette”) was the postal carrier assigned to the route that included Hiller’s address. Orsette had previously become familiar with Harris and his handwriting when assigned to a di fferent route that, co incidentally, included the residence where Harris was living with his mother . During that time, Harris ofte n handed Orsette items to mail. Harris would also give Orsette tear-out subscription cards fro m magazines—sometimes ten or fifteen per week—and direct her to send them along with other magazine order forms that were in the outgoing mailbox. Those subscription orders typically had another person’s name on them
but no return address.
When Orsette was transferred to the postal ro ute that included Hiller’s apartment, she again encountered Harris and his mother, who had moved to a neighb orhood within her new route. At his new address, Ha rris continued mailing the mag azine subscription forms, placing them in the outgoing box. Orsette recognized th e handwriting as being identical to the prior magazine card mailings.
After speaking with Hiller, Ag ent Herrera interviewed Harri s and his mother. Although Harris denied writing the letters, his mother show ed Agent Herrera a box of envelopes, a notepad with yellow-lined paper, and stam ps that were similar to those us ed in the correspondence sent to Congresswoman Miller. Agent Herrera subseque ntly obtained a search warrant for Harris’ residence; during the search, the FBI recovere d the box of envelopes, the stamps, and the notepad.
The FBI subjected the various letters to fore nsic analysis. No fingerprints or DNA were found on the letter sent to Congresswoman Miller, but two of the other lette rs had saliva on themNo. 14-1288 United States v. Harris Page 4

with Harris’ DNA. Those letters had both been sent using Hiller’s return address and were written in the same distinctive handwriting as the M iller letter. A third such letter, also written in that distinctive handwriting, c ontained Harris’ fingerprint.

Harris was indicted in fede ral district court for one count of mailing threatening communications, in violation of 18 U.S.C. § 876(c) . At trial, the court admitted into evidence the letter to Congresswom an Miller and the letters that contai ned Harris’ DNA or fingerprint. In addition, Agent Herrera, Hiller, a nd Orsette all testified that they could identify Harris’ handwriting on the Miller letter based on their previous familiarity with his handwriting. The jury found Harris guilty, and the district court sentenced him to a thirty-month term of imprisonment to be followed by one year of superv ised release. Harris filed this timely appeal.

II.

This case asks us to consider, for the first time, the admissibility of lay witness opinion testimony offered to authenticate or identify ha ndwriting. The courts of appeals that have squarely addressed the issue have held that such testimony “must not only meet the strictures of [Federal] Rule [of Evidence] 701, but mu st also satisfy Rule 901(b)(2).” United States v. Samet , 466 F.3d 251, 254 (2d Cir. 2006); accord United States v. Ali , 616 F.3d 745, 754 (8th Cir. 2010); Hall v. United Ins. Co. of Am. , 367 F.3d 1255, 1259 (11th Cir. 2004); United States v. Brown
Okolo , 82 F. App’x 131, 136 n.14 (5th Cir. 2003); United States v. Scott , 270 F.3d 30, 49 (1st Cir. 2001); United States v. Tipton , 964 F.2d 650, 654–55 (7th Cir. 1992). We begin by examining both rules.
Rule 701 delineates the scope of admissible opinion testimony by a lay witness. The rule provides:

If a witness is not te stifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly unde rstanding the witness’s tes timony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.No. 14-1288 United States v. Harris Page 5

Fed. R. Evid. 701. “In applying Rule 701, the m odern trend among courts favors the admission of opinion testimony, provided that it is well founded on personal knowledge and susceptible to specific cross-examination.” Harris v. J.B. Robinson Jewelers , 627 F.3d 235, 240 (6th Cir. 2010) (internal quotation marks omitted).
Rule 901 prescribes the manner in which eviden ce can be authenticated or identified. See Fed. R. Evid. 901(a). Rule 901(a) states that evidence is admi ssible if there is satisfactory
corroboration that the evidence is what it purports to be. United States v. Kalymon , 541 F.3d 624, 632 (6th Cir. 2008). Rule 901(b) lists examples of the type of corrobor ation that “satisfies the [Rule 901(a)] requirement.” Fed. R. Evid. 901(b). One such example concerns handwriting.
See Fed. R. Evid. 901(b)(2). A lay witness may au thenticate or identify a piece of handwriting provided that his familiarity with the handwriting “was not acquire d for the current litigation.”
Id.
In short, Rule 701 lays out the general rule regarding la y witness opinion testimony, and Rule 901(b)(2) provides the specific rule when such testimony is used to authenticate or identify handwriting. “Thus, testimony purporting to satisf y the specific requireme nts of Rule 901(b)(2) must also satisfy the general requirements in Rule 701.” Hall , 367 F.3d at 1259. As the Second
Circuit observed:
The purpose of Rule 701 is to allow opini on testimony where it would be of some value, and exclude it where it would prove a waste of time. A lay witness who lacks prior familiarity with a person’s handwriting and forms an opinion on it for the first time in preparati on for testimony as a witness does not offer helpful testimony. Not only does such a witness fail in bringing to bear some previously gathered familiarity with the handwriting, but the jury is equally capable of making the same comparisons.

Samet , 466 F.3d at 255 (internal citations omitted). In other words, reading the two rules in conjunction establishes two basic principles: handwriting identificati on testimony is permitted only on occasions where it serves to illuminate witness tes timony or assist the jury in determining a fact in issue, and the trier of f act can assess the weight to accord any handwriting identification testimony because it has knowledg e of the testimony’s factual underpinnings.
In the instant case, the government used th e testimony of Agent Herrera, Hiller, and Orsette in its attempt to establish that the handwriting in the letter to Congresswoman MillerNo. 14-1288 United States v. Harris Page 6

belonged to Harris. Because none of those witne sses were certified as ha ndwriting experts, their testimony had to comply with Rule 901(b)(2).
Agent Herrera, Hiller, and Orse tte all testified that, in thei r opinion, the letter mailed to Congresswoman Miller was authored by Harris becau se it was written in his handwriting. Agent
Herrera testified that he was familiar with Harris’ handwriting, having reviewed Harris’
handwritten love letters to Hiller in the course of his investigation into the mailing of the Miller
letter. Hiller testified that she received two handwritten love letters from Harris that he personally delivered to her. She also testified th at, per her instructions, Orsette placed letters in
her mailbox that bore her return address and had the same distinctive penmanship as the love
letters from Harris. Orsette testified that sh e was familiar with Harris’ handwriting based on the many magazine subscription forms and other pieces of outgoing mail that he had handed to her directly in her position as a postal carrier assign ed to his previous addr ess and his then-current
address.
In our view, the witnesses’ testimony demons trated sufficient familiarity with Harris’ handwriting to comport with Ru le 901(b)(2). As the First Ci rcuit has explained, over time, courts have permitted “handwriting identification based on ever-looser degrees of familiarity.”
Scott , 270 F.3d at 50. The witness does not have to obs erve the defendant writing; “[o]ther categories of experience can . . . demonstrate familiarity, such as seeing . . . writings purporting to be those of the alleged author when the circum stances would indicate that they were genuine.”
Id. The Eighth Circuit is in accord, having previously held that a witness’ “single exposure to an uncontested signature and single exposure to a c ontested one constituted adequate familiarity under Rule 901(b)(2).” Ali , 616 F.3d at 754; see also United States v. Binzel , 907 F.2d 746, 749 (7th Cir. 1990) (“While the extent of the witness’ familiarity generally goes to the weight to be accorded his testimony, rather than to the admissi bility, there must be a minimal factual basis from which knowledge of, and a familiarity wit h, another’s handwriting might reasonably have been acquired.”). Here, the witnesses all testif ied that they had become familiar with Harris’ handwriting based on letters he wrote, subscr iption cards he filled out, or envelopes he
addressed.No. 14-1288 United States v. Harris Page 7

Moreover, the witnesses did not gain this familiarity for purposes of this litigation. See Fed. R. Evid. 901(b)(2). Agent Herrera gained his familiarity in his capacity as a law enforcement officer attempting to solve a crime. See Samet , 466 F.3d at 256 (holding that familiarity was not gained for purposes of litig ation when it resulted from law enforcement officer’s investigation and work in solving a crime) . Hiller gained her familiarity in her capacity as Harris’ neighbor and the object of his moonstruc k missives. Orsette gained her familiarity in her capacity as Harris’ postal carrier.
The witnesses’ opinion te stimony, like all lay opinion test imony, was also required to satisfy Rule 701. Harris argues that the testimony simultaneous ly violated Rule 701(b) and invaded the jurors’ province to draw their own conclusions from the evidence and determine his guilt or innocence. He contends that because th e witnesses’ familiarity with his handwriting was derived from documents that had been admitted into evidence, the jury was capable of comparing the handwriting in the threatening lette r to the handwriting in the other documents known to be written by Harris, rendering the proffered testimony “unhelpful.”
We have held that witness testimony is unhelpful when it addresses matters that are within the competence of the ju ry to understand and decide. See Heritage Mut. Ins. Co. v. Reck , 127 F. App’x 194, 199 (6th Cir. 2005) (quoting McGowan v. Cooper Indus., Inc. , 863 F.2d 1266, 1273 (6th Cir. 1988)). In McGowan , the appellant challenged the district court’s exclusion of opinion testimony regarding whether a contractor breached the appl icable duty of care. The panel affirmed, reasoning that once the jurors he ard the evidence on the scope of the contractor’s duty, they were just as qualified as the proffered witness to answer the ultimate legal question of whether the contractor breached that duty. Id. 1 That outcome is unsurprising in light of our strong disfavor of lay opinion testimony th at consists of a legal conclusion. See, e.g., United
States v. Ahmed , 472 F.3d 427, 434 (6th Cir. 2006); Torres v. Cnty. of Oakland , 758 F.2d 147, 150 (6th Cir. 1985).
In an unpublished opinion, a panel of the Court held that la y opinion testimony is “helpful” within the meaning of Rule 701 when the witness has “enjoyed significantly more time

1 The witness was offered as both a lay witness pursuant to Rule 701 and an expert witness pursuant to Rule 702. Under both rules, the opinion testimony must be helpful. See Fed. R. Evid. 701(b), 702(a).No. 14-1288 United States v. Harris Page 8

to study and compare the evidence” than the jury. United States v. Shields , 480 F. App’x 381, 387 (6th Cir. 2012) (citing United States v. Zepeda-Lopez , 478 F.3d 1213, 1222 (10th Cir. 2007)); accord Samet , 466 F.3d at 255 (suggesting that lay opinion testimony identifying handwriting is inherently helpful when the witnes s has a prior familiarity with the handwriting in question). In Shields , the Court did not find error in the district court’s admission of a police officer’s lay opinion testimony regarding similari ties between the tread on shoes belonging to the defendant and a photograph of sh oe prints found at the crime s cene. Unlike the witness in
McGowan , the police officer gave an opinion, based on his perception, regarding a contested fact issue; he did not attempt to offer a legal conclusion couched in opinion. Cf. United States v.
Dow , 875 F.2d 868 (6th Cir. 1989) (unpublished table decision) (per curiam) (holding that lay witness opinion testimony as to whether letters were “threaten ing” in an 18 U.S.C. § 876 prosecution was unhelpful because jurors could make their own determination on that legal question).

More instructive, in United States v. McClinton , the Court did not find an abuse of
discretion when the district court allowed a witne ss to identify the defenda nt as the individual in a surveillance photograph. 972 F.2d 349 (6th Ci r. 1992) (unpublished table decision) (per curiam). The witness was the defendant’s supe rvisor at his place of employment and based his identification on an uncommon physi cal characteristic of the defenda nt and the jacket worn in the photo. The defendant argued that because he had been present in the courtroom for the duration of the trial, “the jury was capable of comparing the surveillance photograph with the defendant and arriving at its own conclusion in determini ng if he was the robber.” Id. Rejecting this argument, the Court found that the evidence was properly admitted because it was rationally based on the witness’ perception and helpful to th e jury in determining whether the defendant in fact appeared in the photo. The jury was not required to accept the witness’ testimony as conclusive; rather, since the jurors “had the surveillance photograph before them, they could evaluate the credibility of [the witn ess’] perception and identification.” Id. (citing United States
v. Maddox , 944 F.2d 1223 (6th Cir. 1991)); see also United States v. Perry , 438 F.3d 642, 649– 50 (6th Cir. 2006).No. 14-1288 United States v. Harris Page 9

In light of the approach taken by the Court in the cases discussed above, it cannot be said that the contested testimony in this case was unhelp ful. If credited by the jury, it would aid the determination of whether Harris in fact wrote the letter, which in turn would aid the
determination of whether Harris caused the letter to be mailed—the first element of the offense for which he was being tried. See 18 U.S.C. § 876(c). Additiona lly, the testimony was based on personal knowledge and susceptible to detailed cr oss-examination, further weighing in favor of
admission. See Harris , 627 F.3d at 240.

Harris’ reliance on United States v. Freeman , 730 F.3d 590 (6th Cir. 2013), is misplaced. In that case, the defendant was convicted of conspiracy to use interstate commerce facilities in the commission of murder for hire, in violati on of 18 U.S.C. § 1958. We vacated the conviction, holding that an FBI agent who testified on beha lf of the government gave inadmissible and prejudicial lay testimony under Rule 701. The agen t was put on the stand to explain the meaning of certain code words used in recorded phone conversations and to identify the voices and nicknames of the participants. However, the wi tness began to make substantive interpretations of the meaning of various statements, even those spoken in plain English, based on having listened to all 23,000 recorded phone calls (the vast majority of which were not admitted into evidence) and his many years of e xperience as an FBI agent. The Court found that the testimony contravened Rule 701 because the government did not establish a sufficient foundation for it. The agent “substantiated his respon ses and inferences with generic information and references to the investigation as a whole [and] . . . [h]e never specified personal experiences that led him to obtain his information but, instead , repeatedly relied on the gene ral knowledge of the FBI and the investigation as a whole.” Id. at 596. Thus, when the agent “i nterpreted those conversations on the basis of his listening to ‘all of the calls,’ the jury had no wa y of verifying his inferences or of independently assessing the logical steps he had taken.” Id. at 597.

The Freeman court further held that the agent’s testimony impermissibly told the jury what result to reach. The Court explained th at much of the witness’ testimony was improper because he “drew conclusions from the phone calls the jury heard as well as from thousands of other phone calls and FBI eviden ce the jury had no access to,” and in so doing, the agent “infringed upon the role of the jury to decide wh at to infer from the evidence, and instead toldNo. 14-1288 United States v. Harris Page 10

them what conclusions and inferences to draw based on his ‘fifteen years of experience.’” Id. at
598.
The testimony in the instant case did not su ffer from these defects. As previously discussed, Agent Herrera, Hiller, and Orsette all discussed the documents upon which they based their familiarity with Harris’ handwriting, th us providing a sufficient foundation for their identification testimony. Further, the witnesses did not tell the jury what conclusions to reach; their testimony was not argument. They merely stat ed that based on their fa miliarity with Harris’ handwriting and their review of the letter to Congresswoman Miller, they believed that Harris had penned that letter. The jury was able to assess the weight to give their testimony on this score because they were aware of how the witn esses came to their conclusions. Equally important, the jury was free to come to a different resolution of this fact issue precisely because many of the writings upon which the witnesses ba sed their familiarity had been admitted into
evidence. Freeman ’s concern—that “[a]n agent presented to a jury with an aura of expertise and authority increases the ri sk that the jury will be swayed improperly by the agent’s testimony, rather than rely on its own interpretation of the evidence”—is simply not present in this case. Id. at 599. As made clear by defense counsel’s so le question on re-cross, Agent Herrera did not purport to be a handwriting expert. Nor did he claim to have a superior ability to compare handwriting because of his position as an FBI agen t. Furthermore, he did not base his opinion on parts of the investigation or evidence unknown to th e jury. The witnesses’ testimony did not tell the jury to draw the ultimate conclusion that Harris knowingly mailed a th reatening letter to a Congresswoman Miller; the testimony simply info rmed the jurors that the witnesses believed, based on their familiarity with Harris’ ha ndwriting, that Harris wrote the letter.

III.
In sum, the handwriting identification testimony satisfied Rules 701 and 901(b)(2) and therefore was properly admitted. Accordingly, we AFFIRM Harris’ conviction and sentence.