[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13681

________________________

D.C. Docket No. 1:17-cr-00315-LMM-JKL-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

DONTIEZ PENDERGRASS, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(March 24, 2021)

Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.

ROSENBAUM, Circuit Judge: 

Concealing one’s identity can literally be an art in itself. Banksy, an English 

street artist known for his distinctive stenciling graffiti found along buildings in 

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London, New Orleans, and San Francisco,1 has long hidden his true identity and 

name. But new Banksy works can often be identified by comparing them with 

patterns in his prior works: his signature techniques,2 his choice of medium—

inconspicuous walls and a bag of spray paint cans, and his unique aesthetic—blackand-white stenciled images often accompanied by a vibrant pop of color.3

 And 

perhaps the biggest clues are his satirical, thought-provoking messages underlying 

each piece. 

Identifying patterns and whittling down a list of suspects are not just for 

Banksy sleuths. Law enforcement used similar strategies to track down and identify 

a suspect in a string of five robberies targeting small, mom-and-pop businesses in 

the Atlanta suburb of Gwinnett County. Distinctive hallmarks—like the robber’s 

left-handed use of a black-and-silver pistol, bullets or their casings cycled through 

the same .40-caliber pistol in three of the five robberies, and clothing and accessories 

with unique designs—that made appearances in the robberies led investigators to 

Dontiez Pendergrass. Pendergrass was indicted on five counts of armed robbery 

1 Valerie Stimac, Banksy in America: Where to See the Subversive Graffiti Artist’s Work. 

Lonely Planet, (Oct. 29, 2019), www.lonelyplanet.com/articles/where-to-see-banksy-usa (last 

visited Mar. 23, 2021). 2 Simon Hattenstone, The Importance of Spotting a Genuine Banksy, The Guardian, (Mar. 

14, 2007), https://www.theguardian.com/artanddesign/2007/mar/14/art.simonhattenstone (last 

visited Mar. 23, 2021). 3 https://www.the-artists.org/Banksy/#:~:text=The%20stenciled%20technique%20of%20

Banksy%20is%20what%20makes,that%20he%20uses%20a%20computer%20make%20the%20

stencils (last visited Mar. 23, 2021); see also https://www.streetartbio.com/artists/banksy/ (last 

visited Mar. 23, 2011).

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and, relatedly, carrying a firearm in furtherance of the charged robberies. Following 

a five-day trial, the jury convicted him on all charges.

Pendergrass now challenges his convictions on several grounds. After careful 

consideration and with the benefit of oral argument, we affirm. 

I. Facts

We take the facts from the evidence presented at Pendergrass’s trial. In 

particular, we review the relevant evidence concerning the robberies of each of the 

five businesses: the China Star restaurant, Polo’s Taqueria, Discount Grocery, 

Bonita Coin Laundry, and the Best Wings restaurant. Then we summarize the 

relevant evidence law enforcement recovered when it conducted a search warrant on 

Pendergrass’s residence after the robberies had occurred.

A. China Star Robbery

On the evening of November 19, 2016, the China Star Restaurant was robbed. 

The owner was in the back of the restaurant preparing for closing. An armed man 

with his face covered from the nose down approached, pushed one of the restaurant 

employees inside, and demanded money. As the robber used his left hand to aim a 

black-and-silver pistol at the owner, the owner handed over cash. 

Restaurant surveillance captured the incident on video, and the jury viewed 

that footage during the trial. The video revealed that the robber wore a red hooded 

shirt under a long-sleeved black shirt with a distinctive white pattern on it. 

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B. Polo’s Taqueria Robbery

About a month after the China Star robbery, on December 24, 2016, three 

armed men robbed Polo’s Taqueria shortly after it closed. Israel Morales, a Taqueria 

employee, sat outside the restaurant after his shift ended (at around midnight), when 

three men with faces covered from the nose down and covered bodies approached 

him. Two of the three men carried pistols, and the third had a long gun. The long 

gun was a chrome-barreled rifle with a scope on it. One of the assailants shot out 

the glass in the front door of the restaurant to gain entry. Then robbers forced 

Morales inside the restaurant and demanded he open the safe located in the office, 

but Morales told them he did not know how. 

The owner of the restaurant, Gerardo Muro, was also present during the 

robbery and saw the three men approach as Morales sat out front. As this occurred, 

Muro ran to the back of the restaurant and heard a gunshot, so he called 911. 

Surveillance cameras again recorded the robbery, and the jury viewed the 

resulting video and still photos from them. One of the robbers was a tall man who 

carried a black-and-silver pistol in his left hand. He wore gloves, along with a red 

shirt underneath a long-sleeved black shirt with a distinctive white pattern. And over 

his clothing, he wore a single-strap cross-body backpack. 

Besides this, the government presented the testimony of FBI Special Agent 

Mathew Carman, who discussed phone-related data he had collected. Carman 

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testified that at 10:38 p.m. and 12:35 p.m. on the night of the robbery, a phone 

number ending in 1011, which was registered to Pendergrass, “pinged” off a cell 

tower that covered the area where Polo’s Taqueria was located. He also attested to 

Google geo-location data that revealed Pendergrass’s phone was near Polo’s 

Taqueria about an hour before the robbery. 

Ballistics expert Zachary Weitzel also testified. He noted the police had 

recovered an intact bullet cartridge from inside the restaurant near the front windows 

and identified it as ammunition for a Smith and Wesson .40-caliber gun. He also 

testified, based on his review of the evidence, that the ammunition had been cycled 

through the same firearm as the one used at the Discount Grocery and Best Wings 

robberies we describe below.4

C. Discount Grocery Robbery

One week after the Polo’s Taqueria robbery, on the evening of January 1, 

2017, Discount Grocery was robbed. Discount Grocery is in the same shopping 

plaza as the China Star restaurant. Owner Sunil Joseph was closing the store 

between 9:00 and 9:30 p.m. and as he stood behind the counter, three men rushed at 

him. Their faces were covered from the nose down, and all three were armed with 

4 According to Weitzel, cycling marks are “marks that were imparted on the cartridge from 

it going through the gun and then being ejected without being fired.” He said the shell casings 

from the Discount Grocery and Best Wings robberies also had specific cycling marks comparable 

to those on the Polo’s Taqueria cartridge. 

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guns. One of the robbers grabbed Joseph and demanded he get on his knees. When 

Joseph refused, the robber pistol whipped him to force him to comply. While Joseph 

was on his knees, he reached for a gun located near the register. Another taller 

robber, who was wearing white gloves and was armed with a black-and-silver pistol 

in his left hand, answered by shooting Joseph three times. As Joseph bled, he called 

911, while the robbers ran. 

Joseph provided surveillance video to the police, and the government 

presented this video and still photos derived from it to the jury during the trial. The 

surveillance video showed that Joseph’s assailant was a man who wore a single-strap 

cross-body backpack. Joseph further described the man who shot him as tall with 

“dreads” and said the man wore a red headwrap. 

During their investigation of the scene, officers found droplets of blood 

outside the counter and several shell casings from when Joseph was shot. Forensic 

DNA expert Jeremy Fletcher testified that the blood found on the floor at Discount 

Grocery matched Pendergrass’s blood. In fact, he attested that the DNA on the floor 

of the grocery store was 690 septillion times more likely to be Pendergrass’s than an 

unknown person’s. 

As for the three shell casings recovered from the floor of the grocery store, as 

we have mentioned, Weitzel (the ballistics expert) confirmed that they were cycled 

through the same Smith and Wesson .40-caliber gun used in the Polo’s Taqueria 

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robbery and in the Best Wings robbery we describe below. And similar to the Polo’s 

Taqueria robbery, Agent Carman testified that, at 7:20 p.m. and 8:41 p.m. on the 

night of the robbery, Pendergrass’s cell phone “pinged” off a cell tower that covered 

the area where Discount Grocery was located. Carman also presented Google geolocation data showing that Pendergrass’s phone was near Discount Grocery about 

twenty minutes before the robbery and shooting. 

D. Bonita Coin Laundry Robbery

Four days after the Discount Grocery robbery, on January 4, 2017, the Bonita 

Coin Laundry was robbed. An employee of the laundry, Sonia Prudencio, was there 

when it happened, as were several patrons and some young children. According to 

Prudencio, the robbery occurred at around 9:00 p.m., when two armed men who 

were covered up rushed into the laundromat and grabbed her fourteen-year-old 

daughter. After commanding the other customers to get on the floor, the men took 

Prudencio’s daughter to the safe and stole cash. 

Surveillance video the store manager provided and the government played for 

the jury showed a taller robber. He was wearing a red hooded shirt, white gloves, 

and a covering on his face. In his left hand, he held a black-and-silver pistol. 

Other witnesses who were threatened during the robbery also testified. The 

witnesses all said that the robbers made everyone go to the restroom, where the 

robbers blocked them in with a pool table so the robbers could escape. 

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E. Best Wings Robbery

Eleven days after the Discount Laundry robbery, on January 15, 2017, Best 

Wings was robbed. The robbery occurred between 3:00 and 4:00 a.m., after Best 

Wings had closed. 

As Saurilius Kyzelius, a Best Wings patron, and Brittany Anderson, a Best 

Wings employee, left the restaurant and approached Anderson’s car, two armed 

robbers accosted them, one with a gun in his left hand. The robbers insisted that the 

two return to the restaurant and demanded the key to the safe. 

Another customer heard a commotion and went outside to see what was 

happening. He struggled with the taller robber, who wore a red shirt and white 

gloves, and carried a pistol in his left hand. During this struggle, the taller robber 

fired a shot towards Anderson’s car, where Anderson and Kyzelius were attempting 

to evade the other robber. The shot barely missed Kyzelius. Then the robbers forced 

everyone back inside the restaurant and forced them to get on their knees. The 

robbers again demanded that Anderson give them the key to the safe. When she said 

she did not have it, the robbers took Kyzelius’s wallet and cash. As another car 

pulled up to the restaurant, the robbers fled on foot, crossed the street, and jumped a 

fence into a residential area near Wenham Lane—where Pendergrass was later 

discovered to reside. All of this was captured on surveillance video, which the 

government played for the jury. 

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Responding officers found the shell casing fired towards Anderson’s car and 

noted what appeared to be a bullet hole in her car. Weitzel testified that the shell 

casing was cycled through the same Smith and Wesson .40-caliber gun used at the 

Discount Laundry robbery.

And as with some of the other robberies, Agent Carman testified that 

Pendergrass’s cellphone was located near Best Wings shortly after the robbery. 

Specifically, the phone ending in 1011 “pinged” off the cell towers near Best Wings 

at various times between 3:35 and 3:58 a.m. Google geo-location data showed 

Pendergrass’s presence within 70 meters of Best Wings just before the robbery. And 

within minutes after it, the phone was back near Pendergrass’s residence at 1044 

Wenham Lane. 

F. Evidence Recovered During Search of Pendergrass’s Home

On March 30, 2017, law enforcement executed a search warrant at 

Pendergrass’s home and for his car parked outside. In the basement of the house, 

officers recovered a black single-strap cross-body backpack like the one seen in the 

Discount Grocery and Polo’s Taqueria robbery videos. They also seized a black 

long-sleeved shirt with a distinctive white pattern on it that looked like the robber 

wore during the Polo’s Taqueria and China Star robberies. 

Inside Pendergrass’s car, officers found a rifle with a distinctive chrome barrel 

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and scope, like the one used by one of the robbers at Polo’s Taqueria.5 Pendergrass 

admitted that the shirt and rifle were his and conceded that he was left-handed. 

II. Procedural Background

A. The Indictment

Pendergrass was indicted on five counts of Hobbs Act armed robbery, in 

violation of 18 U.S.C. § 1951, and five counts of brandishing or discharging a 

firearm during, and in relation to, a crime of violence, in violation of 18 U.S.C. § 

924(c). The federal public defender was appointed to represent Pendergrass.

B. Motion to Suppress Phone

During the proceedings, Pendergrass filed a motion to suppress certain 

evidence. Below, we discuss the facts relating to that motion. 

On March 10, 2017—after the robberies but unrelated to them—officers 

responded to a 911 call. They found Pendergrass, who had been shot, with a gold 

Porsche Cayenne about 200 feet away. Law enforcement impounded the car and 

obtained a warrant to search it for “handguns, long guns, drugs, bullets, blood 

and/or DNA.” Among other things, the search yielded a gold LG phone belonging 

to Pendergrass. An inspection of the phone revealed pictures and videos that 

incriminated Pendergrass in the robberies.

5 The search of Pendergrass’s car on March 30, 2017, was the second search of the vehicle. 

As we discuss in Section II.B., infra, law enforcement first searched his car on March 10, 2017. 

At that time, officers seized an LG cell phone.

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Before trial, Pendergrass filed a motion to suppress the evidence from the 

phone. He argued that the search of the phone was unlawful because it exceeded 

the scope of the search warrant, which authorized a search of the car for only 

“handguns, long guns, drugs, bullets, blood or DNA.” A magistrate judge held a 

hearing on the motion and ultimately recommended granting the motion to 

suppress, finding that the detective lacked probable cause to believe that the phone 

contained evidence of the shooting of Pendergrass. The district court adopted the 

magistrate judge’s recommendation and granted the motion to suppress the LG 

phone and its contents. 

C. Motion to Exclude Google Geo-Location Data

Prior to Pendergrass’s indictment, and to shore up the case against him, FBI 

Special Agent Matthew Winn submitted an application for a search warrant to obtain 

“data associated with Google account Dontiezpendergrass@gmail.com” including 

Global Positioning System (“GPS”) data and other location data. On July 24, 2017, 

a judge issued the search warrant, directing Google to provide the government with 

the geo-location information associated with the Google account. Google complied. 

Before trial, Pendergrass filed a motion to exclude, among other things, the 

Google geo-location data showing Pendergrass’s whereabouts during the robberies. 

In support of the motion, Pendergrass asserted that the search-warrant application 

improperly relied on evidence gathered from the illegally obtained LG phone, 

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including the fact that the Google username dontiezpendergrass@gmail.com was 

linked to the LG cellphone. Pendergrass argued that the Google geo-location data 

should all be excluded as fruit of the poisonous tree because it stemmed from the 

unlawful search of the LG phone, and the evidence obtained from the phone had 

since been suppressed. 

The government opposed the motion, insisting it had an independent source 

of information for Pendergrass’s email address, and it would have inevitably 

discovered Pendergrass’s email address and obtained the resulting geo-location data 

from Google, regardless.

The district court denied Pendergrass’s motion because it concluded that the 

government had shown “a reasonable probability that the evidence in question would 

have been discovered other than by the tainted source.” It also relied on the 

government’s representation that it would have sought out the geo-location data 

based on the email address associated with the Instagram account. As a result, the 

government admitted the Google geo-location data at trial. 

D. Motion to Continue Trial

On January 23, 2019, the district court granted a motion for continuance and 

rescheduled the trial for June 17, 2019. A few days later, on January 28, 2019, 

Pendergrass moved to appoint new counsel. On February 4, 2019, noting that 

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Pendergrass was not financially able to employ counsel, the court granted the motion 

and entered an order appointing new counsel. 

On June 3, 3019, with only two weeks left until the start of trial, Pendergrass’s 

attorney filed a motion to continue the trial. In the motion, counsel recounted that 

she had recently received a K-9 report from the government. She believed that the 

government intended to offer expert testimony at trial about whether the K-9 

“alerted” near Pendergrass’s home. Counsel also mentioned photographs she 

expected to be forthcoming and said the recordings of the 911 calls from the 

robberies had recently been provided. Citing the need for an “opportunity to 

properly investigate and prepare for the K-9 expert,” counsel moved for a 

continuance of the trial. She was careful to explain that “the other late-produced 

items would not keep the defense from being ready on June 17, 2019.” 

At the pretrial conference on June 11, 2019, the district court heard oral 

argument about the motion to continue and about whether the K-9 evidence was 

admissible. The district court decided to exclude the K-9 evidence under Federal 

Rule of Evidence 403. And since the K-9 evidence was no longer an issue, the 

district court denied the motion to continue the trial. 

E. Jury Trial

As scheduled, the jury trial began on June 17, 2019. During voir dire, 

prospective Juror 20 stated that she worked as a Coordinating Chief Community 

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Supervision Officer for the Department of Community Supervision. When asked 

whether she was a probation officer, Juror 20 said, “Well, Community Supervision 

Officer, Probation and Parole, Yes, Ma’am.” She also verified that she was POST 

certified.6

 Juror 20 agreed that, if she were selected as a juror, her job (and her POST 

certification and employment in law enforcement) would not affect her ability to 

judge the trial testimony fairly and impartially. Juror 20 also said she would not give 

more weight to any law-enforcement witness simply because of her job. 

When the district court asked if Pendergrass wished to strike any juror for 

cause, Pendergrass argued that the court should strike Juror 20 as statutorily exempt 

because she was a POST-certified law-enforcement officer. The district court 

disagreed. It concluded Juror 20 was not exempt from jury service because she was 

not a member of a police or fire department, as that term is understood in the 

exemption from jury service for “members of the fire or police departments,” as set 

forth in 28 U.S.C. § 1863(b)(6).7

 The district court also noted the jury office’s policy 

in conducting its pre-screening process did not consider probation officers as exempt 

under § 1863. Because neither party struck her using a peremptory challenge, Juror 

20 served as a member of the jury. 

6 A POST-certified person has received education in Peace Officer Standards and Training. 

7 The district court determined that Juror 20 was not exempt under § 1863(c), either,

because she was not a public officer in the executive branch of the United States government or of 

any state. 

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During trial, the government presented the testimony of twenty-seven 

witnesses, including the robbery victims and the law-enforcement personnel who 

responded to the robberies, processed the crime scenes, and conducted forensic 

examinations of the evidence. As we have mentioned, the government also showed 

the jury surveillance videos and still photos derived from them. A ballistics expert 

testified regarding shell casings and cartridges found at three of the robbery scenes, 

and the government presented the jury with cell-site and Google geo-location data 

placing Pendergrass in the area of three of the robberies. Finally, the government 

entered into evidence the items discovered during a search of Pendergrass’s home 

and car. 

Of particular relevance to this appeal is the testimony of Special Agent Winn. 

Winn testified that his investigation into the armed robberies began in early 2017, 

when he obtained cell phone “tower dumps.” These tower dumps provided him with 

all the phone numbers that had accessed the closest cell towers to the robbery 

locations around the times of the robberies. From the tower-dump results, Winn 

identified two phone numbers that were near three of the robbery locations around 

the time of the robberies. One of the phone numbers belonged to Pendergrass. Law 

enforcement ruled out the other because it belonged to someone who did not meet 

the physical description of the robbers, based on surveillance video. 

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Next, Winn spoke about another potential suspect law enforcement had 

eliminated from consideration—Quintarious Luke. Law enforcement originally 

identified Luke after a traffic stop because he had a black-and-silver pistol. But 

Luke’s physical appearance differed from those of the robbers and his phone records 

placed him a significant distance from the robbery locations when the robberies took 

place. Winn also testified that the Georgia Bureau of Investigation (“GBI”) analyzed 

Luke’s gun, and ballistics analysis confirmed that it was not the same pistol used in 

the Polo’s Taqueria, Discount Grocery, and Best Wings robberies. 

Then the government turned to the video footage it was able to obtain. It 

showed Winn screenshots from the admitted surveillance videos and asked him to 

point out to the jury things he found to be significant, such as items a robber was 

wearing. Pendergrass complains that Winn repeatedly stated that he had watched 

the videos of the robberies many times and implied that the jury should therefore 

believe his description of the video and screenshots. 

Before beginning her cross-examination, defense counsel sought for the 

district court to instruct the jury that it should disregard any of Winn’s testimony 

that Pendergrass was the person depicted in the video of the robberies, and that the 

question was a matter for the jury alone to decide. The district court obliged, 

instructing the jury as follows:

[T]o the extent that you heard testimony from Special 

Agent Winn that in his opinion Mr. Pendergrass was the 

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person depicted in the surveillance video of the robberies, 

you are to disregard it. Whether Mr. Pendergrass is the 

person depicted in the videos is a matter for you, the jury, 

to decide. And that is just an instruction I wanted to give 

you at this time so there wouldn’t be any confusion.

At the conclusion of the trial, the jury found Pendergrass guilty of all charged 

offenses, and the district court sentenced Pendergrass to a total of 552 months’ 

imprisonment. Pendergrass now appeals. 

III.

Pendergrass raises six challenges to his conviction. He contends that he was 

prejudiced by the district court’s denial of his motion to continue trial; he asserts that 

the district court improperly declined to dismiss Juror 20 for cause; he takes issue 

with certain testimony Winn gave; he argues that admission of the geo-location data 

violated his Fourth Amendment rights; he contests the sufficiency of the evidence; 

and finally, he urges us to find cumulative error stemming from any combination of 

these alleged errors. We consider each claim in turn.

A. The district court did not abuse its discretion when it denied Pendergrass’s 

motion to continue the trial date.

Pendergrass argues that the denial of his motion to continue the trial date 

essentially rendered meaningless his fundamental right to assistance of counsel 

under the Sixth Amendment. In Pendergrass’s view, counsel lacked sufficient time 

to prepare for trial. In support of this contention, Pendergrass notes that trial counsel 

had been appointed only a few months prior to trial. He also complains that he was 

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not able to review all his discovery, so he did not fully realize the evidence against 

him. 

We are not persuaded. Trial courts are afforded “great latitude” with respect 

to scheduling, and judges enjoy “broad discretion” in ruling on motions for 

continuances. United States v. Garmany, 762 F.2d 929, 936 (11th Cir. 1985). We 

review for abuse of discretion a district court’s denial of a motion to continue trial, 

and the denial of such a request does not rise to error “unless it is arbitrary and 

unreasonable and severely prejudices the moving party.” SEC v. Levin, 849 F.3d 

995, 1001 (11th Cir. 2017); see also United States v. Valladares, 544 F.3d 1257, 

1262 (11th Cir. 2008). 

When a criminal defendant claims he did not have enough time to prepare for 

trial, he must identify the relevant evidence he would have presented had the request 

for a continuance been granted. United States v. Jeri, 869 F.3d 1247, 1257 (11th 

Cir. 2017). We also consider several factors, including the “time available for 

preparation, the likelihood of prejudice from denial, the accused’s role in shortening 

the effective preparation time, the degree of complexity of the case, and the 

availability of discovery from the prosecution.” Id. (quotation omitted). 

Here, Pendergrass has not pointed to any evidence he would have presented 

if his request for a continuance had been granted. Plus, defense counsel stated she 

sought the continuance to obtain time to prepare for the K-9 evidence the 

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government planned to introduce at trial. But the district court eliminated that 

problem when it excluded the K-9 evidence. And significantly, counsel conceded 

“the other late-produced items would not keep the defense from being ready on June 

17, 2019.” 

True, during the pretrial conference, Pendergrass asserted for the first time 

that he had not been able to fully review the original discovery because he had 

inadequate access to library time at the jail. But the district court remedied this 

problem as well, directing that Pendergrass receive additional time to review his 

discovery. 

Under the circumstances, the district court acted well within its discretion 

when it denied the motion for a continuance. Pendergrass had roughly two years to 

prepare for his trial and did not point to any evidence that would have been presented 

if the continuance had been granted. And although his trial counsel came into the 

case late in the game, that was because Pendergrass twice sought new counsel. Even 

so, his new counsel had about four months to prepare for trial, and she told the court 

that she would be ready in the absence of the K-9 evidence. The evidence presented 

at trial also was not voluminous or complicated. In sum, the district court acted well 

within its discretion when it denied the motion to continue. See Valladares, 544 

F.3d at 1262 (citing United States v. Gibbs, 594 F.2d 125, 127 (5th Cir. 1979) 

(district court did not abuse its discretion when finding the defendant had ample time 

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to prepare his defense, and he had “point[ed] to no critical documents that might 

have been uncovered with additional time and whose absence prejudiced or impaired 

his defense.”)). 

B. The district court did not err or abuse its discretion in declining to dismiss 

Juror 20 for cause. 

Next, Pendergrass contends the district court erred by refusing to excuse Juror

20 from service under 28 U.S.C. § 1863(b)(6), because of her employment. We 

review for abuse of discretion a district court’s decision to strike, or to refuse to 

strike, a prospective juror for cause. United States v. Abraham, 386 F.3d 1033, 1035 

(11th Cir. 2004) (per curiam). But since this issue also raises a question of statutory 

interpretation, we review that matter de novo. See United States v. St. Amour, 886 

F.3d 1009, 1013 (11th Cir. 2018) (per curiam).

Title 28 U.S.C. Section 1863 requires each district court to create a plan for 

random jury selection. Under the statute, certain persons must be exempted from 

jury service, based on their employment. As relevant here, § 1863 provides that 

“members of the fire or police departments of any State, the District of Columbia, 

any territory or possession of the United States, or any subdivision of a State, the 

District of Columbia, or such territory or possession” are “barred from jury service 

on the ground that they are exempt.” 28 U.S.C. § 1863(b)(6)(B). Pendergrass argues 

that Juror 20 fell within this exemption because she worked for the Department of 

Community Supervision.

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Although Pendergrass acknowledges the statute does not define the phrase 

“members of . . . police departments,” he relies on Georgia law to piece together 

support for his argument that Juror 20 falls into this category. We walk through 

Pendergrass’s analysis. 

He first notes that under Georgia law, a person must be POST certified to 

serve as a law-enforcement officer. Appellant’s Brief at 37 (citing https://www.

gapost.org/about.html). As we have noted, Juror 20 was POST certified. 

Pendergrass also observes that although O.C.G.A. § 35-8-2(8)(A) does not 

refer to police officers, it defines a “peace officer” as someone who is “vested either 

expressly by law or by virtue of public employment or service with authority to 

enforce the criminal or traffic laws through the power of arrest and whose duties 

include the preservation of public order, the protection of life and property, and the 

prevention, detection, or investigation of crime.” And he notes a person who is

authorized to exercise the power of arrest and who is employed by the Department 

of Community Supervision—like Juror 20—is expressly designated as a “peace 

officer.” See O.C.G.A. § 35-8-2(8)(C). Georgia law also defines a “[l]aw 

enforcement unit” to include the Department of Community Supervision. O.C.G.A. 

§ 35-8-2(7)(C). Pendergrass further points out that, among other duties, the 

Department of Community Supervision supervises certain defendants and 

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administers and enforces laws, rules, and regulations relating to probation and 

parole supervision. See O.C.G.A. § 42-3-3(a). 

Putting all this together, Pendergrass asserts that these circumstances make

the Department of Community Supervision a law-enforcement unit of the State of 

Georgia, the equivalent of a police department at the state level. He emphasizes 

that Juror 20 was POST certified and that she informed the court that she has 

testified against criminal defendants at trial, which Pendergrass characterizes as a 

“key function of police work.” So Pendergrass contends Juror 20 was required 

under § 1863(b)(6)(B) to be exempted from service because she was a member of 

a police department. 

In further support of his position, Pendergrass argues that construing § 

1863(b)(6)(B) to exempt only employees of entities labeled as “police departments” 

would allow officers of a wide array of entities that are clearly encompassed by the 

purpose of the statute to serve as jurors. For instance, Pendergrass contends, 

sheriff’s deputies, Georgia State Patrol officers, Georgia Bureau of Investigation 

agents, and others similar to them would all fall outside the district court’s 

interpretation of § 1863(b)(6)(B).

We disagree. We begin “where courts should always begin the process of 

legislative interpretation, and where they often should end it as well, which is with 

the words of the statutory provision.” Harris v. Garner, 216 F.3d 970, 972 (11th 

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23

Cir. 2000) (en banc). But when considering the plain language of the text, we bear 

in mind that “[a] provision that may seem ambiguous in isolation is often clarified 

by the remainder of the statutory scheme.” Koons Buick Pontiac GMC, Inc. v. Nigh, 

543 U.S. 50, 60 (2004) (quotation omitted). Where the language of the statute is not 

entirely clear, we also consider the canons of statutory construction. CBS Inc. v. 

PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir. 2001). 

Here, we need go no further than the plain language of the statute, which we 

find to be unambiguous. Significantly, § 1863(b)(6)(B) uses the term “members of 

. . . police departments”—not a broader catchall term like “members of law 

enforcement” or “individuals who are POST certified.” True, the statute does not 

define “police department,” but that term is fairly self-evident. Black’s Law 

Dictionary defines “police department” as “[t]he official local law-enforcement 

organization in a particular town, city, or area” or, “[t]he building in which this 

organization has its headquarters or a satellite office.” Police Department, Black's 

Law Dictionary (11th ed. 2019). The Merriam-Webster Dictionary defines “police 

department” as “a governmental department concerned with the administration of 

the police force.” Police Department, Merriam-Webster Dictionary, https://www.

merriam-webster.com/dictionary/police%20department (last accessed March 23, 

2021). In turn, “police force” means “a body of trained officers entrusted by a

government with maintenance of public peace and order, enforcement of laws, and 

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prevention and detection of crime.” Police Force, Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/police%20force (last accessed 

March 23, 2021). 

Taking these definitions together, the plain language of the statute means that 

to be excluded from jury service under § 1863, a person must in function be a police 

officer, not a member of any organization that could fall under the broad umbrella 

of law enforcement. We “are not at liberty to rewrite the statute passed by Congress 

and signed by the President.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 

S. Ct. 524, 528 (2019). Significantly, the Georgia statute that lists the duties assigned 

to Juror 20 omits quintessential functions of police officers, as that term is commonly 

understood: the prevention and detection of crime and maintenance of peace and 

order. 

We reject Pendergrass’s argument that reading the statute in this way excludes 

police officers whose organizational names do not contain the term “police 

department.” The statute does not require the term to be incorporated into the 

organization’s name; it demands only that the individual be a “member” of what is 

functionally a police department. Clearly, individuals who are sheriff’s deputies or 

members of the Georgia State Patrol qualify as members of a police department 

because of their work responsibilities. The duties individuals perform matter, not 

the titles of the agency to which they belong. 

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We have also observed that “allowing police officers to perform their duties 

without the interruption of jury service is good for the community.” United States 

v. Terry, 60 F.3d 1541, 1544 (11th Cir. 1995). Indeed, the prevention and detection 

of crime and maintenance of peace and order are essential functions. And while 

DCS officers also perform important and significant duties such as supervising the 

state’s probationers and parolees, as well as some juveniles, they do not regularly 

render the same types of bare-necessity services as police officers. See O.C.G.A. § 

42-3-3. Unlike police officers, DCS officers do not respond to 911 calls, enforce 

criminal and traffic laws, patrol the streets, and make arrests on a daily basis outside 

those necessary to their supervisory duties. 

Our conclusion aligns with that of the Tenth Circuit. It rejected a challenge 

similar to the one Pendergrass raises. See United States v. McCullah, 76 F.3d 1087, 

1099 (10th Cir. 1996). There, McCullah contended that the prospective juror, a 

prison guard at a state minimum-security prison, should have been stricken for cause 

under § 1863(b)(6)(B) because, in McCullah’s view, the juror’s job as a prison guard 

qualified him as a “member[] of . . . [a] police department[].” In support of his 

argument, McCullah relied on Oklahoma statutes that gave prison guards the powers 

of “peace officers” and that defined “police officer” and “peace officer” comparably. 

Id. at 1099. The Tenth Circuit determined that McCullah’s interpretation of § 

1863(b)(6)(B) was inconsistent with the plain language of the statute, which clearly 

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refers to only the narrow category of “police officers.” Id. Although the Tenth 

Circuit recognized that prison guards had some police-like duties, it held that they 

were not members of the police department. Id. Had Congress intended to exclude 

a broader class of law-enforcement employees from jury service, the court reasoned, 

it would have simply used a broader term such as “law enforcement officer.” Id. 

We agree. Juror 20 did not qualify as a “member[] of . . . [a] police 

department” under § 1863(b)(6)(B). And because Juror 20 stated that she would be 

fair and impartial in her assessment of the evidence and promised not to give more 

weight to any law-enforcement witness simply because of her job, the district court 

did not abuse its discretion in declining to reject Juror 20 for cause. 

C. Even assuming without deciding that the Google geo-location data should 

have been excluded as “fruit of the poisonous tree,” any error in admitting 

that evidence was harmless beyond a reasonable doubt.

Pendergrass contends the admission of the Google geo-location data violated 

his Fourth Amendment rights because it constituted “fruit of the poisonous tree.” 

The Fourth Amendment protects against unreasonable searches and seizures. When 

a court determines that a violation has occurred, under appropriate circumstances, it 

excludes evidence garnered as a result of the breach. See Herring v. United States, 

555 U.S. 135, 139 (2009). This exclusionary rule extends beyond the direct results 

of police misconduct to “evidence derived from the illegal conduct, or fruit of the 

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poisonous tree.” United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th Cir. 

1990) (quotation omitted). 

Here, Pendergrass emphasizes the district court’s suppression of the LG phone 

and its contents because of the phone’s unlawful seizure. He claims the court also 

should have prohibited the Google geo-location data because law enforcement 

discovered Pendergrass’s Gmail address on the excluded LG phone, and the Gmail 

address was the information that prompted the July 2017 search warrant to Google. 

In Pendergrass’s view, the government did not demonstrate the applicability 

of an exception to the exclusionary rule because it did not actively pursue leads that 

would have led to the Google geo-location data before the illegal seizure of the LG 

phone. See United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984). For that 

reason, Pendergrass argues the district court erred in concluding that the government 

established the inevitable-discovery exception to the fruit-of-the-poisonous-tree 

doctrine. He adds that the independent-source exception was not satisfied because 

the district court did not make a finding on subjective intent. See United States v. 

Barron-Soto, 820 F.3d 409, 414 (11th Cir. 2016). 

We assume without deciding that the district court erred in allowing the 

admission of the Google geo-location data during trial because it amounted to fruit 

of the poisonous tree, and no exception applied. Nevertheless, Pendergrass is not 

entitled to a vacatur of his conviction because any error was harmless in the shadow 

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of the overwhelming evidence against Pendergrass with respect to the three 

robberies in which the government presented geo-location data. 

The harmless-error rule applies to many constitutional errors, including 

violations of the Fourth Amendment. See United States v. Roy, 855 F.3d 1133, 1167-

68 (11th Cir. 2017). A constitutional error is harmless “if the government proves 

beyond a reasonable doubt that the error complained of did not contribute to the 

verdict obtained.” United States v. Pon, 963 F.3d 1207, 1227 (11th Cir. 2020) 

(citation and internal quotation marks omitted). We have explained that that standard 

is satisfied if the error is “unimportant in relation to everything else the jury 

considered on the issue in question, as revealed in the record.” Id. (citation and 

internal quotation marks omitted). To assess this, we examine “the facts, the trial 

context of the error, and the prejudice created thereby as juxtaposed against the 

strength of the evidence of defendant’s guilt.” United States v. Reed, 700 F.2d 638, 

646 (11th Cir. 1983) (citation and internal quotation marks omitted). 

Here, the jury heard Google geo-location evidence for only three of the five 

robberies: Discount Grocery, Polo’s Taqueria, and Best Wings. The weight of the 

evidence against Pendergrass relating individually to each of the Discount Grocery 

and Polo’s Taqueria robberies was crushing. And as for the evidence supporting 

Pendergrass’s conviction on the Best Wings robbery, that evidence, too, was 

formidable, especially when we account for all the evidence in this case.

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We begin by reviewing the evidence in the Discount Grocery robbery. For 

starters, Pendergrass’s DNA was found at the scene. Indeed, an expert testified that, 

based on an analysis of the blood droplets recovered from the store’s floor, the DNA 

found was 690 septillion times more likely to be Pendergrass’s than that of an 

unknown person. Plus, cell-tower data showed Pendergrass in the vicinity of the 

robbery at the relevant time. Even without the Google geo-location data, then, these 

two pieces of evidence placed Pendergrass at the scene. 

But that’s not all. The three shell casings found on the floor of the grocery 

store showed they were cycled through the same Smith and Wesson .40-caliber gun 

used in the Polo’s Taqueria and Best Wings robberies. And video surveillance and 

testimony established that a robber in all five crimes was a tall, left-handed man, 

who brandished a black-and-silver pistol and covered his face from the nose down. 

It also showed that the Discount Groceries robber wore a single-strap cross-body 

backpack and white gloves. Pendergrass admitted he was left-handed, and from 

Pendergrass’s residence, law enforcement recovered a backpack like the one in the 

video. As for the white gloves, they made an appearance on the left-handed robber 

in the videos from three of the other robberies as well.

This avalanche of evidence easily establishes Pendergrass’s guilt in the 

Discount Grocery robbery beyond a reasonable doubt. We confidently conclude that 

the admission of the Google geo-location data had no substantial influence on the 

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outcome of the trial.

Nor did the Google geo-location data have any more of a substantial influence 

on the jury’s verdict as it pertained to the Polo’s Taqueria robbery. First, cell-tower 

data placed Pendergrass’s phone in the area at the time of the robbery. Second, as 

we have noted, a bullet cartridge found at the scene had been cycled through the 

same gun used during the Discount Grocery and Best Wing robberies. Third, like 

with the other robberies, the suspects covered their faces in the same way and carried 

guns. Fourth, a chrome-barreled long gun with a scope on it that was later found at 

Pendergrass’s residence matched the description of the gun that one of the robbers 

carried, and Pendergrass admitted the long gun was his.

Fifth, as with the Discount Grocery robbery, video surveillance and testimony 

concerning the Polo’s Taqueria robbery established that one of the robbers was a 

tall, left-handed man, who brandished a black-and-silver pistol. Sixth, video showed 

the robber wearing a single-strap crossbody backpack like the one recovered from 

Pendergrass’s residence. Seventh, video also captured that robber wearing white 

gloves like the ones worn in three of the other robberies. And eighth, the robber 

wore a red shirt under a long-sleeved black shirt with a distinctive white pattern. As 

with the rifle and cross-body backpack, the black-and-white shirt was found at 

Pendergrass’s house, and he admitted it was his.

This sea of evidence against Pendergrass requires us to conclude beyond a 

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reasonable doubt that the admission of the Google geo-location data had no 

substantial influence on the outcome of the trial. Any error in admitting the Google 

geo-location was therefore harmless. 

Finally, we turn to the Best Wings robbery. But because Pendergrass 

challenges his conviction on that one on sufficiency-of-the-evidence grounds as well 

as on the admission of the Google geo-location data, we address it below. 

Nevertheless, we conclude that the geo-location data had no substantial effect on the 

verdict because, for the reasons we explain in Section III.D, the other evidence 

against Pendergrass was quite strong and because unchallenged cell-site data also 

placed Pendergrass in the vicinity of the robbery. In sum, we are satisfied beyond a 

reasonable doubt that any error in admitting the geo-location data was harmless, as 

the other evidence against Pendergrass handily established his guilt.

D. The evidence sufficiently supported Pendergrass’s convictions on all five 

robberies. 

Pendergrass urges that the government failed to present sufficient evidence to 

sustain his convictions on the China Star, Bonita Coin Laundry, and Best Wings 

robberies. We disagree. Particularly when viewed together, the evidence of all the 

robberies establishes a modus operandi and a pattern that support Pendergrass’s 

convictions for each robbery. 

We review de novo the sufficiency of the evidence to support a conviction 

and the denial of a Rule 29, Fed. R. Crim. P., motion for judgment of acquittal. 

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United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). In conducting our 

review, though, we consider all evidence in the light most favorable to the 

government and draw all reasonable inferences in favor of the jury’s verdict. United 

States v. Grzybowicz, 747 F.3d 1296, 1304 (11th Cir. 2014). After applying these 

principles, we determine “whether a reasonable jury could have found the defendant 

guilty beyond a reasonable doubt.” Gamory, 635 F.3d at 497 (quotation omitted). 

Reasonable inferences, drawn from circumstantial evidence, are sufficient to support 

a guilty verdict. See United States v. Martin, 803 F.3d 581, 587-88 (11th Cir. 2015). 

Credibility questions are for the jury, and we assume the jury made all credibility 

determinations in support of the verdict. United States v. Jiminez, 564 F.3d 1280, 

1285 (11th Cir. 2009).

We conclude this case falls squarely under our decision in United States v. 

Bowers, 811 F.3d 412 (11th Cir. 2016). There, like here, the government tried 

multiple robberies in a single case. Id. at 416-422. To support its case, the 

government presented modus operandi evidence, as well as physical evidence 

connecting some of the robberies. Id. The defendant challenged the sufficiency of 

the evidence, and we affirmed, holding that evidence of the modus operandi and 

other recurring patterns among the eight robberies in that case permitted the jury to 

conclude that the same person committed all eight crimes. Id. at 424, 430. 

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Here, too, evidence of the modus operandi and other evidentiary patterns 

allowed the jury to find that Pendergrass executed all five robberies, including the 

three challenged as lacking sufficient evidence. A summary chart of the evidence 

(exclusive of the Google geo-location data) demonstrates the many similarities 

among the five robberies: 

Characteristic China 

Star

Polo’s 

Taqueria

Discount 

Grocery

Bonita 

Coin 

Laundry

Best 

Wings

Occurred at closing or later at night X X X X X

Mom-and-Pop-type shop X X X X X

Taller robber X X X X X

Who was left-handed X X X X X

Who brandished silver-and-black 

pistol

X X X X X

And who covered his face X X X X X

And who wore a black shirt with a 

distinctive white design (like one 

recovered at Pendergrass’s residence 

and which he admitted he owned)

X X

And wore red under- or outer-shirt 

layer

X X X X

And wore a single-strap, cross-body 

backpack (like one recovered at 

Pendergrass’s residence)

X X

And wore white gloves X X X X

Shot or shots fired X X X

Casings or bullets recovered from 

Smith & Wesson .40-caliber gun

X X X

Casings recovered matched other 

casings recovered at other charged 

robberies

X X X

Cell-tower dump data showed phone 

associated with Pendergrass in the 

area

X X X

Rifle with distinctive chrome barrel 

and scope (like one recovered at 

Pendergrass’s residence and which he 

admitted he owned), used by another 

robber

X

Pendergrass’s DNA recovered from 

scene

X

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We conclude that a reasonable jury could (and did) find beyond a reasonable 

doubt that these patterns were not coincidence but rather evidence that the same 

person committed all five robberies. Similar modus operandi evidence demonstrated 

that all the businesses targeted were mom-and-pop establishments (with China Star 

and Discount Groceries even located in the same strip mall); the robberies all took 

place at the closing of the business or later; all five robberies were committed in a 

short period (a span of eight weeks); the robbers covered their faces and brandished 

guns in the same way in all the robberies; one robber carried a silver-and-black pistol 

in his left hand in all the robberies; in four of the five robberies, that same robber 

wore a red shirt as either an under or outer layer; and in four of the five robberies, 

that same robber wore white gloves.

Plus, Pendergrass was firmly linked to the string of robberies in significant 

ways: his DNA was found at one scene; cell-tower evidence connected Pendergrass 

with three of the crimes; at Pendergrass’s residence, law enforcement found a black 

shirt with a distinctive white pattern like the piece of clothing a robber wore in both 

the China Star and Polo’s Taqueria robberies, and Pendergrass admitted the item 

was his. Law enforcement also recovered a bullet or its casings from the Best Wings 

scene that matched those found at the sites of Polo’s Taqueria and Discount Grocery 

(where Pendergrass’s DNA was recovered) and was cycled through the same gun 

used at all three locations. 

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When modus operandi evidence supports an inference that the same person 

committed multiple crimes, a jury can consider identity evidence from other 

robberies. See Bowers, 811 F.3d at 429. Here, even without accounting for other 

evidence that may pertain to the three robberies for which Pendergrass challenges 

his convictions, through repeating patterns in all five robberies, the overwhelming 

evidence that Pendergrass committed at least two of the other robberies (Discount 

Grocery and Polo’s Taqueria) permits the inference that he committed the three 

challenged robberies as well. And that is especially the case in the Best Wings 

robbery, where, as we have noted, law enforcement recovered a bullet casing that 

was cycled through the same gun the robber used at Discount Grocery and Polo’s 

Taqueria. Id.

Pendergrass tries to avoid this result by suggesting the Bonita Coin Laundry 

robbery was inconsistent with the other robberies because customers and employees 

were locked in the bathroom. We disagree. 

First, as we have suggested, the evidence from the Bonita Coin Laundry 

robbery follows many of the material patterns that the other four robberies did. The 

robber from the Bonita Coin Laundry was taller, brandished a black-and-silver pistol 

in his left hand, and covered his face from his nose down in the same way that a 

robber in all the other robberies did. He also wore white gloves like the left-handed, 

black-and-silver-pistol-wielding robber in three other robberies, including the Polo’s 

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Taqueria and Discount Grocery robberies. And he wore a red shirt like that same 

robber in three other robberies, including the Polo’s Taqueria robbery. 

Second, the forcefulness the robbers displayed during the Bonita Coin 

Laundry robbery resembled that of the robbers in all the other incidents. The robbers 

in the Polo’s Taqueria robbery took Morales by the arm and forced him inside where 

the safe was located. In the China Star incident, robbers forced the owner and an 

employee back into the restaurant. And in the Best Wings robbery, robbers told a 

patron and employee to return inside and repeatedly demanded a key to the safe. As 

for the Discount Groceries robbery, one of the robbers forced Joseph to his knees by 

pistol-whipping him, and then the taller robber shot Joseph when he tried to reach a 

gun. The robbers’ actions during the Bonita Coin Laundry robbery in rushing in and 

forcing the owners and patrons into the bathroom was just more of that same 

forcefulness exhibited in all five robberies. 

In sum, the mosaic and patterns of evidence firmly tie all five robberies to 

Pendergrass and sufficiently support his convictions on each robbery.

E. Special Agent Winn’s testimony does not warrant vacatur of the convictions.

Pendergrass also challenges Special Agent Winn’s testimony on three 

grounds. First, he argues that large portions of it constituted hearsay. Second, he 

asserts that it violated his rights under the Confrontation Clause. And third, he 

contends that it amounted to improper opinion testimony. Because Pendergrass did 

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not object to the admission of this testimony during trial, we review for plain error. 

See Hawkins, 934 F.3d at 1264. 

The admission of evidence constitutes plain error when the evidence was “so 

obviously inadmissible and prejudicial that, despite defense counsel’s failure to 

object, the district court, sua sponte, should have excluded the evidence.” United 

States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008) (quotation omitted). To 

establish plain error, Pendergrass must satisfy three conditions. First, he must show 

that error occurred, and he did not intentionally forfeit or abandon the error. 

Hawkins, 934 F.3d at 1264. Second, he must demonstrate that the error was plain, 

meaning “clear or obvious.” Id. Third, he must prove the error affected his 

substantial rights. Id. If Pendergrass can meet these conditions, we may exercise 

our discretion to notice and correct a forfeited error, but only if the error “seriously 

affected the fairness, integrity, or public reputation of judicial proceedings.” Id. 

(quoting United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018)). This 

test is rigorous but not impossible. Id.

We begin with the hearsay challenge. Pendergrass contests Winn’s 

testimony concerning (1) the contents of the tower-dump records, (2) others’ 

statements about potential suspect Quintarious Luke, (3) the statements of those 

who said surveillance video was not available, and (4) the statements of 

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Pendergrass’s girlfriend and her mother that Pendergrass lived in the basement of 

their home at 1044 Wenham Lane. 

Except for the last category, none of the challenged statements were hearsay 

because, as we explain below, they were not offered for the truth of the matter 

asserted. See Fed. R. Evid. 801(c). Under our binding case law, statements by outof-court witnesses to law enforcement may be admitted as non-hearsay if they help 

explain the later investigative actions, and the danger of unfair prejudice caused by 

the impermissible hearsay use of the statement does not substantially outweigh the 

probative value of the evidence. Jiminez, 564 F.3d at 1288. The first three 

categories of Winn’s challenged testimony fall under this rule because that evidence 

showed why Winn focused his investigation on Pendergrass and excluded other 

potential suspects during his investigation. 

For example, the government did not offer the testimony about the 

unavailability of other surveillance videos to prove the accuracy of the statements. 

Indeed, if offered for the truth of the matter, that type of evidence would not make 

it more or less likely that a particular suspect committed or did not commit the 

robberies. Similarly, the testimony about Quintarious Luke—such as his physical 

description and use of tower dump data—was not offered to establish the 

truthfulness of those statements. Rather, with both categories of information, the 

government sought to show the steps Winn took during his investigation. Along 

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the same lines, the government relied on this evidence to refute any defense claims 

that the government had not investigated all leads and had not obtained all evidence. 

Winn’s testimony about Quintarious Luke also referred to ballistics—that 

GBI determined Luke’s gun was not used during the robberies. The testimony 

perhaps implicates the ballistics testing performed on the bullet casings and cartridge 

found at the crime scenes. But during the trial, other witnesses verified the 

authenticity of those ballistics records. For instance, GBI forensics expert Weitzel 

performed a microscopic comparison of the shell casings and cartridge. He prepared 

a report on his findings. And during trial, Weitzel testified that the three shell casings 

found at Discount Grocery were shot from the same gun as the one casing found at 

Best Wings. He also testified that the bullet cartridge found at Polo’s Taqueria was 

ejected from the same gun as that used during the Discount Grocery and Best Wings 

shootings. 

With respect to the cell-site data, FBI Special Agent Carman testified about 

how that data was gathered and how it was read and reported. During his testimony, 

he described how Pendergrass’s phone had “pinged” off certain cell towers near the 

robbery locations of Polo’s Taqueria, Discount Grocery, and Best Wings. Records 

reflecting this substantive data were admitted into evidence, and Pendergrass did not 

object. So when Agent Winn discussed the records, they were already in evidence, 

and regardless, he used them for the purpose of explaining his investigative actions.

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As for Pendergrass’s final hearsay challenge—to his testimony that 

Pendergrass’s ex-girlfriend told police that Pendergrass lived in the basement of her 

home at 1044 Wenham Lane—we agree with Pendergrass that that statement 

qualifies as hearsay. Winn asserted it for the truth of the matter: that Pendergrass 

lived at the Wenham Lane address. But that does not warrant reversal here.

That information was also established through other means. And in any event, 

even assuming without deciding that the admission of this evidence could rise to the 

level of plain error, no reasonable probability of change in the outcome of trial exists. 

The government admitted an exhibit from T-Mobile showing subscriber information 

for Pendergrass. And that documentation, to which Pendergrass did not object, 

showed Pendergrass lived at 1044 Wenham Lane. Besides that, law-enforcement 

officers conducting surveillance also saw Pendergrass arriving at and leaving from 

the residence. Plus, Pendergrass himself admitted that his shirt and other items were 

located at the address. 

We turn next to Pendergrass’s Confrontation Clause challenge. This claim, 

too, lacks merit. As we did with the hearsay challenge, we review this claim for 

plain error since Pendergrass did not object at trial to a violation of the Confrontation 

Clause. 

The Confrontation Clause prohibits the admission of out-of-court statements 

that are testimonial unless the declarant is unavailable and the defendant had a 

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previous opportunity to cross-examine the declarant. See Crawford v. Washington, 

541 U.S. 36, 51–52 (2004). Our decision in Jimenez, however, clarified that the 

Confrontation Clause “prohibits only statements that constitute impermissible 

hearsay.” Jiminez, 564 F.3d at 1286. There, we noted the Supreme Court’s 

explanation that “[t]he Clause . . . does not bar the use of testimonial statements for 

purposes other than establishing the truth of the matter asserted.” Id. at 1286-87 

(quoting Crawford, 541 U.S. at 59 n. 9). 

Because the first three categories of challenged testimony do not qualify as 

hearsay, Pendergrass’s Confrontation Clause challenge with respect to them 

necessarily fails, too. As for the evidence from Pendergrass’s girlfriend, even 

assuming without deciding that the admission of that evidence could constitute plain 

error, Pendergrass cannot show that its admission violated his substantial rights, 

since the same evidence came in admissibly.

We also reject Pendergrass’s argument his convictions must be vacated 

because Winn offered improper opinion testimony during trial and the government 

inappropriately used him as a summary witness to review evidence and draw 

inferences for the jury. As with Pendergrass’s other challenges to Winn’s testimony, 

Pendergrass did not object on this basis, either, during trial. For that reason, we 

again review for plain error. None exists here, and Pendergrass’s reliance on our 

decision in United States v. Hawkins, 934 F.3d 1251 (11th Cir. 2019), fails. 

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In Hawkins, the government presented the agent there as an expert, but the 

agent also testified to matters of fact. As a result, that agent’s testimony crossed 

back and forth between factual testimony and expert opinion. In addition, the 

Hawkins agent provided speculative interpretative commentary on the meanings of 

entire conversations, as opposed to construing just drug code words used during the 

conversations and for which he served as an expert. 

Here, though, the government did not admit Winn as an expert, so no danger 

of confusion between factual and expert-opinion testimony existed. Winn also did 

not purport to have expert knowledge of the subtext of entire conversations 

consisting of everyday language, like the agent in Hawkins did. Rather, Winn simply 

reviewed the evidence presented, explaining to the jury how he linked Pendergrass 

to the robberies. His testimony identified the overlapping evidence between the 

robberies and the robbers’ overall modus operandi. And significantly, Winn’s 

testimony was supported by surveillance videos, still pictures, tangible evidence 

found at Pendergrass’s home, ballistics, cell-site data, and other witness testimony. 

This case does not involve improper interpretation of evidence that impeded 

or invaded the function of the jury. Instead, it involves the synthesis of a large 

volume of already-admitted evidence. And even assuming some of Winn’s 

testimony strayed into the realm of improper interpretation, he was neither the sole 

nor the primary witness in the case. Rather, the government presented twenty-seven 

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witnesses at trial over five days, and many witnesses testified to the same facts that 

Winn did. That distinguishes this case from Hawkins in yet another way, since the 

agent there testified for more than half the trial.

We also reject Pendergrass’s complaint about Winn’s testimony on the 

identity of the person in the surveillance videos. To be sure, Winn did point out the 

robbers’ physical features and did say they matched those of the defendant. But in 

any event, the district court instructed the jury, “Whether Mr. Pendergrass is the 

person depicted in the videos is a matter for you, the jury to decide.” We assume 

juries follow the court’s instructions. United States v. Almanzar, 634 F.3d 1214, 

1222 (11th Cir. 2011). Beyond that, during a sidebar, defense counsel explicitly 

stated she had no objection to the government’s asking Winn why he considered 

Pendergrass a suspect or noting that the suspect was left-handed, tall, and athletic. 

So any errors in these regards are forfeited, in any event. See United States v. 

Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (invited error “stems from the 

common sense view that where a party invites the trial court to commit error, he 

cannot later cry foul on appeal.”). 

For all these reasons, Pendergrass’s challenges to Winn’s testimony fail. 

F. Even assuming error, cumulative error here does not warrant vacatur of the 

convictions. 

Last, we reject Pendergrass’s contention that the cumulative effect of the 

alleged pre-trial and trial errors we have discussed rendered his trial fundamentally 

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unfair. We review de novo the cumulative impact of trial errors. United States v. 

Dohan, 508 F.3d 989, 993 (11th Cir. 2007). The cumulative-error doctrine calls for 

reversal of a conviction if, in total, the non-reversible errors result in a denial of the 

constitutional right to a fair trial. United States v. Reeves, 742 F.3d 487, 505 (11th 

Cir. 2014). 

Our first step in a cumulative-error analysis calls for us to evaluate each claim 

independently. United States v. Margarita Garcia, 906 F.3d 1255, 1280 (11th Cir. 

2018). Then we survey “the trial as a whole” in assessing whether a defendant 

received a fundamentally fair trial. United States v. Ladson, 643 F.3d 1335, 1342 

(11th Cir. 2011). No cumulative error exists where a criminal defendant cannot 

establish that the combined errors affected his substantial rights. United States v. 

Foley, 508 F.3d 627, 638 (11th Cir. 2007). A defendant’s substantial rights are not 

affected if “properly admitted evidence sufficiently established [his] guilt.” United 

States v. Adams, 74 F.3d 1093, 1100 (11th Cir. 1996). 

Here, the whole is not greater than the sum of the parts. Even assuming that 

the admission of the geo-location data was erroneous, and even assuming errors in 

the admission of some of Winn’s testimony, we conclude that Pendergrass has not 

shown his substantial rights were affected by the aggregation of alleged errors. As 

we have reviewed in detail, the evidence against Pendergrass formidably 

demonstrated his guilt with respect to the charged offenses. See Adams, 74 F.3d at 

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1100 (substantial rights not affected if sufficient evidence of guilt exists). 

Pendergrass received a fundamentally fair trial, so his convictions must be affirmed. 

IV.

For the foregoing reasons, we affirm Pendergrass’s convictions on all counts.

AFFIRMED.

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