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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No s . 11

- 2385, 11

- 2437 and 11

- 2538

_____________ UNITED STATES OF AMERICA

v. ABDULLAH MUHAMMAD, Appellant No. 11

- 2385

_____________ U NITED STATES OF AMERICA

v. ANTHONY PETERSON, Appellant Nos. 11

- 2437 and 11

- 2538

_____________ Appeal s from the United States District Court for the District of New Jersey (D.C. Criminal Nos. 2

- 09

- cr - 00265

- 00 3, 2

- 09

- cr - 00265

- 001 and 2

- 93

- cr - 00010

- 001 District Judge: Honorable Susan D. Wigenton

_____________ Submitted Under Third Circuit LAR 34.1(a) September 18, 2012 Before: SLOVITER, RENDELL and HARDIMAN , Circuit Judges (Opinion Filed : January 31, 2013 )

_____________ OPINION OF THE COURT

_____________2 RENDELL, Circuit Judge In these consolidated appeals, Abdullah Muhammad and Anthony Peterson appeal the convictions and sentenc es they received following a jury trial on charges arising out of a bank robbery and ensuing high

- speed chase

. They raise numerous claims of error.
F or the reasons that follow , we will affirm the District Court’ s judgments of conviction and sentence as t o Muhammad and Peterson

. .

I. On March 12, 2009, i t was near ing closing time at a Bank of America branch in
Somerset , New Jersey , when f our men drove a stolen Jeep Cherokee into the bank’s parking lot . A s one man waited in the car with the engine running , t he other three entered the bank wearing gloves and masks of different United States presidents and carrying guns. Two of these masked men were identified at trial as Muhammad and
Peterson. The men took the security guard’s gun. They then ordered the tel lers and the bank ’s sole patron to get down on the floor. One of the men then pointed his gun at the tellers and demanded cash; he then emptied the tellers’ cash drawers into a bag. A second man put a gun to a bank employee’s head and ordered him to ope n the vault. The vault opened and the men removed cash. The men then ordered everyone in the bank to stay on the ground, and left the bank with, among other items, the security guard’s gun and over $93,000 in cash. The cash included “bait bills” which c ontained two hidden GPS devices. Several bystanders saw the robbers leave the bank and one witness called 911, reporting the Jeep’s license plate. The witness also reported that the Jeep turned into an3 apartment complex parking lot about 500 feet from the bank. In the lot, the robbers left the Jeep, still running, and a shotgun, and jumped into a stolen Ford minivan. The van left the parking lot as police officers entered to investigate . A fter an eyewitness reported the vehicle swap , which the officers reported over the police dispatch radio , another
officer who was approaching the apartment complex observed the van and began following it

. During the ensuing chase, the r obbers fired shots at the officer on the road and in an open square in New Brunswic k, New Jersey. The officer radioed that shots had been fired. Ultimately, the chase continued through a residential area until the van crashed into a security gate at St. Peter’s University Hospit al. The robbers exited the van, and a firefight between t hem and the police ensued. The robbers ran through a residential neighborhood, some taking off layers of clothing as they ran. Finally, a police officer trapped the robbers in a cul

- de

- sac, where two of them pointed their guns at the police. The police fired, striking three of the four robbers. Police then arrested the four robbers. Muhammad, Peterson, and a nother co - defendant were charged in the U.S. District Court for the District of New Jersey with three counts : (1) conspiracy to commit bank robbe ry by force and violence, or intimidation, contrary to 18 U.S.C. § 2113(a), in violation of 18 U.S.C. § 371; (2) armed bank robbery by force and violence, or intimidation in violation of 18 U.S.C. § 2113(a), (d), and § 2; and (3) use of a firearm in furthe rance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and § 2

. The co

- defendant pleaded guilty. Muhammad and Peterson proceeded to trial on November 3, 2010.4 During the five

- day jury trial, the Government presented the testimony of b ank employees, a bank security manager, and eyewitnesses to different stages of the escape, chase, apprehension , and subsequent investigation , including various police officers and detectives. One of the detectives testified as an expert in latent fingerp rint processing, and another detective testified as an expert in firearms operation. A n FBI forensic examiner also testified as an expert in DNA profiling and statistics. The Government also called the owners of the stolen vehicles as witnesses. Additio nal trial evidence included bank security camera footage, GPS devices, physical evidence found in the abandoned van (including the masks worn by the perpetrators ) , and audio recordings of police radio dispatches

. The Government also introduced c ertain art icles of clothing ( e.g., pants, sweatshirts, gloves, and shoes) that the police recovered from the defendants
at the time of their arrest or shortly thereafter. On November 9, 2010, the jury convicted Muhammad and Peterson of all three counts against them

. 1

1 The jury also returned a unanimous verdi ct on a supplemental question that is not at issue here. The District Court sentenced Muhammad to a within

- guidelines imprisonment term of 225 months. T he District Court calculated Muhammad’s guideline range for imprisonment as 87 to 108 months based upon a total offense level of 27 and a criminal history c ategory of III . Additionally, he received a mandatory consecutive sentence of 120 months on Count Three for use of a firearm during a violent crime under § 924(c)

.5 Peterson also received a within

- guidelines imprisonment term , totaling 562 months. 2

Muhammad and Peterson timely filed notices of appeals

. The District Court had juri sdiction over these cases under 18 U.S.C. § 3231. Our Co urt has jurisdiction to review judgment s of conviction under 28 U.S.C. § 1291, and challenges to sentences under 18 U.S.C. § 3742(a). Havi ng previously been convicted of a crime under 18 U.S.C. § 924( c), Peterson’s mandatory minimum consecutive sentence on Count Three was 25 years. T he District Court also entered a revocation judgment against Peterson, who was on supervised rel ease at the time of the robbery. For the revocation, the District Court sentenced him to an additional 81 months to be served consecutively with his sentence on the robbery charges.

II. Muhammad and Peterson argue that their right to cross

- exam ination under the Confrontation Clause was violated when the District Court allowed FBI f orensic expert , Nicole Nicklow , to testify about the results of , and procedures used to perform , certain
DNA tests that matched the defendants to the robbers’ apparel and masks , without her having personally performed or supervised those tests. They claim that her testimony constituted an out

- of

- court testimonial statement , and that they did not have a prior opportunity to cross

- examine the lab technicians who actually performed the tests , but did not testify at trial

.

2 Peterson’s lengthy sentence was a function of his career offender status.6 Even assuming, arguendo , t he District Court erred in a dmitting Nick l o w’s testimon y , we conclude such error is harmless. An evidentiary error that runs afoul of the Confrontation Clause is harmless only if we conclude beyond a reasonable doubt that the

error did not contribute to the jury ’ s judgment of conviction. See United States v. Lore , 430 F.3d 190, 209 (3d Cir. 2005)

. Our Court “ consider [ s ] numerous factors in assessing whether the erroneous admi ssion of testimonial evidence in violation of the Confrontation Clause was harmless to the defendant, including the importance of the testimony to the Government’ s case, the cumulative nature of the evidence, the existence of corroborating evidence, the ex tent of cross

- examination allowed in the case, and the strength of th e Government’s case as a whole.” United States v. Jimenez , 513 F.3d 62, 78 (3d Cir. 2008) (citing Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986)).
C onsidering all of these factors

— p articularly the breadth and nature of the other overwhelming and cumulative evidence that the Government offered at trial

— it appears beyond a reasonable doubt that the guilty verdicts ren dered on all three counts were not
at t ributable to a ny constraint on Muhammad and Peterson ’ s right s to confrontation that may have resulted from Nicklow’s testimony

. The Government’s case

- in

- chief rendered any evidence concerning DNA testing cumulative, if not superf luous

. 3

3 Although the Government frequently referenced th e DNA evidence during its closing statement, it also commented that the DNA evidence was a “throw

- in.” JA745:25. The Government further discussed evidence, including documents and physical evidence, which demonstrated that the suspects were wearing the s ame articles of clothing, such as gloves, shoes, and pants, both at the bank and the time of their apprehension, noting that this “evidence is almost stronger than the DNA evidence.” JA748:1

- 19; see also JA749:24 to JA750:16. T he Government’s case against Muhamm ad and Peter son was f ormidable . The evidentiary7 record connect ing Muhammad and Peterson to the crime s was overwhelming and convincing , particularly including th e testimony of numerous witnesses who were present
at virtually every stage of the robber y, chase , and appr ehension , as well as bank surveillance footage in which the robbers could be seen wearing apparel that was
confiscated from the defendants at the time of their arrest , and a wide array of physical evidence recovered from the getaway vehicles and the defend ants themselves , including the stolen cash and security guard ’s gun , as well as the perpetrators’ own weapons , apparel , and masks

. Accordingly, to the extent that allowing Nick l ow’s testimony constituted error , it was harmless.
III. Muhammad and Peterson challenge several of the District Court’s evidentiary rulings , which we address seriatim

. Unless a decision was based upon an interpretation of the Federal Rules of Evidence, w e review district court rulings on the admissibility of evidence for abuse of d iscretion

. See United States v. Serafini , 233 F.3d 758, 768 n.14 (3d Cir. 2000) (citing United States v. Pelullo , 964 F.2d 193, 199 (3d Cir. 1992)). “ An abuse of discretion occurs only where th e district court’s decision is ‘ arbitrary, fanciful, or clear ly unreasonable ’

— in short, where ‘ no reasonable person would adopt the district court’s view. ’ ” United States v. Green , 617 F.3d 233, 239 (3d Cir. 2010) (quoting United
States v. Starnes , 583 F.3d 196, 214 (3d Cir. 2009) ). Even i f an evidentiary ruling co nstitutes error, the harmless error analysis applies:
“A non - constitutional error at trial does not warrant reversal where ‘it is highly probable that the error did not contribute to the judgment.’” United States v. Stadtmauer , 620 F.3d8 238, 265

- 2 66 (3d Cir. 2010) (quoting United States v. Helbling , 209 F.3d 226, 241 (3d Cir. 2000)).
H owever, if a defendant failed to properly preserve an objection at trial , w e review for “plain error t hat affects substantial rights

. ” See Fed. R. Crim. P. 52(b). Under th is standard of review, error is reversible under limited circumstances: [A] n appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious , rather than subject to reasonable dispute”; (3) th e error “affected the appellant’ s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, in tegrity or public reputation of judicial proceedings.” United States v. Marcus , 130 S. Ct. 2159, 2164 (2010) (quoting Puckett v. United States , 556 U.S. 129, 135 (2009) )

. A. Muhammad claim s that the District Court abused its discretion by admitting as b usiness records two bank teller reports showing the losses from the bank tellers’ cash drawers , because the witness was not “qualified” and could not lay sufficient foundation for the reports under Fed. R. Evid. 803(6)

. We conclude t his argument is withou t merit. 4
Rule 803(6) creates a hearsay exception for the admission of business records if

“ the testimony of the custodian or another qualified witness ” shows : (1) “the record was made at or near the time by

— or from information transmitted by

— someone with knowledge”; (2) “the record was kept in the course of a regularly conducted activity of a

4 Peterson joins this argum ent on appeal without having raised any objection before the District Court. For the same reasons we find no abuse of discretion as to Muhammad, we find no plain error as to Peterson.9 business”; and (3) “ making the record was a reg ular practice of that activity.” Fed. R. Evid. 803(6)

. Our Court broadly interprets the term, “qualified witness ” ; t o be qualified , a witness only needs to “ have familiarity with the record

- keeping system” or “understand[] the system

. ” United States v. Console , 13 F.3d 641, 657 (3d Cir. 1993) ; see also United States v. Furst , 886 F.2d 558 , 572 n.18 (3d Cir. 1989) ( reco gnizing that

“ t he issue is whether the witness, whether i nside [] or outside [the business] , has sufficient personal knowledge from which to testify to the elements required to establish the foundation ” )

. Here, the foundational requirements of Rule 803(6 ) were met. T he witness, Colby Miller, demonstrated sufficient familiarity and understanding of the bank’s record keeping system to establish he was a qualified witness , and h is testimony set forth the necessary showing for a business record under the Rul e . As the Bank of America Corporate Security Protective Services Manager , Miller was responsib le for the bank’s security program and equipment, as well as assisting law enforcement’s investigation of robberies. To assist such investigations, Miller would collect security surveillance video tape and images of the robbery , and written witness statements , as well as interview bank security officer s present at the time of the robbery . Miller would also collect bank teller loss reports from either the bank man ager or assistant manager . These reports were
obtained from a computer system known as the Merlin Bank System . As Miller testified, the Merlin system would record information about the activity at a teller’s station during the normal course of the bank’s business based upon t ellers count ing down cash in their drawers and then report ing the amount counted to the system ; t he system would then10 calculate any difference between the amounts each drawer should have and the amount a teller reported. 5

Such testimony was sufficient to demonstrate Rule 803(6) ’s foundational requirements . Accordingly, we conclude the District Court did not abuse its discretion by admitting the two loss reports as bu siness records

. As a matter of routine practice, t he bank would perform the same countdown procedure and Merlin system calculation following a robbery incident. Miller testified that he collected two such loss reports prepared the evening of the March 12, 2009 robbery based upon tw o teller drawers from which the robbers obtained cash

.

B. Muhammad ’s next evidentiary argument concerns the admissibility of Miller’s testimony describing what he saw depicted in still images obtained from the bank’s security surveillance video. He contend s that the District Court abused its discretion by admitting t his testimony as lay witness testimony under Fed. R. Evid. 701

. For admission of such testimony to be proper under the Rule , the witness’s opinions or inferences must be: “(a) rationally based on the witness’s perception; (b) hel pful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid.
701. Muhammad argues the prerequisites under subsections (a) and (b) were not met

5 After the two loss reports were admitted into the record over defens e counsel’s objection, Miller further clarified that tellers would count down cash in their drawers randomly throughout a given day and that the amount counted would be compared to the amount of cash with which the teller started initially.11 since Miller was not an eyewitness to the bank robbery and the testimony was not helpful to the determination of a fact in issue. We disagree. 6 First, c ontrary to Muhammad’s contention otherwise, Miller ’s testimony w as based upon his personal knowledge, and specifically what he saw in the surveillance videotape and image stills derived from th at footage . His prior review of the surveillance videotape for the purpose of reporting details of the robbery t o the bank’s c orporate security , and his familiarity with the bank ’s premises and employees , made him eligible under Fed. R. Evid. 701(a) to testify about what was depicted in the video and footage stills

. Cf. United States v. Leo , 941 F.2d 181, 193 (3d Cir. 1991) ( con cluding that testim ony was rationally based on a witness’ s review of business records pursuant to an audit investigation)

. Second , Miller’s testimony was helpful in allowing the jury to understand the security footage in terms of the angles in which the s ecurity camera s were oriented in the bank , what features of the bank were depicted , and iden tifying a bank employee

. His testimony about the image s also was helpful to understanding whether the subject matter of a particular image w as moving or still , and pointing out other specific details present in the images that might not be apparent to a jury upon a single viewing. Cf. United States v. Begay , 42 F.3d 486 , 503 (9th Cir. 1994) ( “[I]t is reasonable to assume that one viewing

6 Peterson joi ns Muhammad’s argument on appeal without having preserved this issue before the District Court. As we find no abuse of discretion as to Muhammad, we similarly find no plain error as to Peterson.12 a videotape of a demonstrat ion involving over 200 people would likely not see certain details, given the tremendous array of events all occurring simultaneously. ”). 7 Moreover, Muhammad and Peterson had the ability to test any weaknesses in Miller’s testimony concerning the surveil lance videotape and images through cross

examination. See F ed . R. Evid. 701 advisory committee’ s note ( recognizing that Fed. R. Evid. 701(b) presumes that “ cross - examination and argu ment will point up the weakness” in lay witness testimony ) ; see also Gov ’ t of V.I. v. Knight , 989 F.2d 619, 630 (3d Cir. 1993) (recognizing same)

. Th ey chose not to do this , however. Peterson did not cros s examine Miller, and Muhammad’s cross

- examination of Miller exclusively involved questions about the Merlin system

. Addi tionally, Miller’s testimony was not an attempt “ to introduce meaningless assertions which amount to lit tle more than choosing up sides” and thus warrants

“ exclusion for lack of helpf ulness.” Fed

. R. Evid. 701 advisory committee’ s note

. He did not expres s opinions about any of the ultimate issues to be decided b y the jury. Cf. Hirst v. Inverness Hotel Corp. , 544 F.3d 221 , 226

- 27 (3d Cir. 2008 ) (concluding testimony was not helpful under Fed. R. Evid. 701(b) because it went to the “ ultimate issue of caus ation ”).

7 Additionally, Muhammad’s counsel objected to Miller’s tes timony on grounds that it intimated that the image quality may not have been “clear.” See JA60:16

- 18 (“And I find that Mr. Miller’s gloss on this, ‘oh, he’s holding a gun, it has a barrel,’ may not be so clear to the jury if they take a look at the pictur e . . . .”)

. Insofar that image quality might have been poor, Miller’s testimony would have helped the jury efficiently discern what the images depicted in light of his prior viewing of the video footage.13 In sum , we cannot conclude t he D istrict C ourt abuse d its discretion in admitting Miller’s surveillance videotape and image testimony as a lay opinion. 8
C

. Muhammad and Peterson raise another lay opinion challenge to the testimony of Jennifer Wa lsh concerning the two GPS tracking devices hidden in the stolen money and the tracking data emitted from the devices during the robbery . The District Court erred, they claim, by admitting the testimony under Fed. R. Evid. 701 when it could not meet
any o f the Rule’ s three prerequisites primarily because Walsh was unable to explain certain aspects of the tracking system’s specific performance and accuracy during the robbery, and had no scientific background concerning the functionality of the GPS device

. A dditionally, Muhammad and Peterson claim that Government Exhibits 1008A and B, 1009A, B, and C, which were the spreadsheet data an d tracking maps derived from the data emitted from the tracking device s , lack ed foundation

. Even if we assume , arguendo , t hat these rulings were in error , they were harmless. Given the aforementioned overwhelming and convincing evidence that t he Government introduced at trial, i t is highly probable that any such error did not contribute to the judgment

. The Government produ ced at trial eyewitnesses , including an eyewitness who

8 To the extent that certain aspects of Miller’s testimony could be deemed to be lacking in helpfulness under Fed. R. Evid. 701(b) by drawing inferences or conclusions that the jury was equally capable of drawing, such as, by way of example, the color of an individual’s shoes or bag, Muhammad and Peters on make no specific contention as to how such inferences or conclusions could have adversely affected the jury’s verdict. Moreover, given the overwhelming and cumulative evidence that the Government offered at trial, as previously discussed, we conclude t hat to the extent there was any error in admitting Miller’s testimony, it is highly probable that such error did not contribute to the verdict, and thus was harmless.14 saw the robbers’ jeep pull out of the bank’s parking lot and the officer who chased the robbers’ van, who testified as to the movements and location of the robbers’ vehicles from the time they left the bank’s premises to the time they were apprehended

— effectively the same facts which the spreadsheets and maps showed. Much like the DNA evidence that the Government introduced, the GPS tracking data and Walsh’s testimony about the data were clearly cumula tive

. 9

D

. Furthermore , Muhammad and Peterson have raised no argument that the error was prejudicial. Thus , if indeed any error did occur , it was not reversible error

.

Muhammad and Peterson argue that the District Court erred by allowing victims of the r obbery

— specifically, two bank tellers, Best Fumador and Parandeep Singh, and
the security guard, Alejandro Ambrose

— to testify about their states of mind during the robbery and the impact that the robbery subsequently had on their lives. According to the
D efendants , such impact testimony was ir relevant and unduly prejudicial under Fed. R. Evid. 401 and 403

. Because only Peterson objected on relevance grounds to Fumador’s testimony concerning the effect the robbery subsequently had on his life, we review t hat chall enge for abuse of discretion. We review the other assignments of error , which were not preserved at trial by defense objection , for “ plain error t hat affects substantial rights

. ”

9 Indeed, the Government acknowledged during its closing argument that the physical evidence recovered from Muhammad at the time of his arrest was “almost better than the GPS evidence” in connecting him to the robbery. JA748:18.15 We conclude that the District Court did not abuse its discretion by overruling Peterson’s relevance objection to Fumador’s testimony. H ow the robbery impacted Fumador was at least minimally probative of whether the Defendants took something of value “by force a nd violence, or by intimidation, ” one of the element s of ba nk robbery
under 18 U.S.C. § 2113(a)

. Under Section 2113(a), “ i ntimidation” means “ to make fearful or put into fear , ” and requires an objective focus on whether “‘ a n ordinary person in the teller’ s position would feel a threat of b odily harm from the perp etrator’ s acts .’” United States v. Askari , 14 0 F.3d 536, 541 (3d Cir. 1998) (en banc ) ( quoting United States v. McCarty , 36 F.3d 1349, 1357 (5th Cir. 1994)), vacated on other ground s by 159 F.3d 774 (3d Cir. 1998) (en banc)

. Although the inquiry concerns whether a defendant’s conduct was objectively intimidating, evidence concerning how a victim was impacted by the defendant’s acts after they were committed would nonetheless be within the realm of evidence that could be relevant to prove the defendants’ i ntimidation. Such evidence would have the tendency to make the fact of objective intimidation m ore or less probable than it would be in the absence of such evidence. See Fed. R. Evid. 401; c f. United States v. Smith , 973 F.2d 603 , 604 (8th Cir. 1992) (“ Evidence that the defendant’ s acts did induce fear in an individual victim is probative of whether his acts were objectively intimidating. ”) (citing United States v. Higdon , 832 F.2d 312, 315 (5th Cir. 1987) )

. As such, the District Court acted well within its sound discretion in permitting Fumador’s testimony as relevant

. 10

10 Muhammad joined Peterson in this argument even though he did not raise any objection to this evidence at tr ial. For the same reasons that we conclude the District16 Similarly, it was not plain error on the basis of Fed. R. Evid. 403 to admit the other victims’ impact testimony as it pertained to themselves personally , o r their observations about th e reaction s of the bank’s customer

. Those victims’ testimony was probative of whether the Defendants were objectively intimidating , and thus admission on the grounds of relevance was not erroneous , let alone constitute a clear or obvious

error. We also d o not find plain error on grounds of undue prejudice because the testimony does not appear to have the tendency to lead the jury “ into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States , 519 U.S. 172, 180 (1997); s ee also United States v. Gatto , 995 F.2d 449, 457 (3d Cir. 1993) (“[W]hen a trial court is not given the opportunity to exercise its discretion in striking the [requisite Rule 403] balance, we will seldom find plain error

. . . . ”).
E

. At trial, three police officers each testified that they heard report s over the police dispatch radio that the robbery suspects were armed and that a weapon was discharged during the pursuit of the robbery suspects

. Muhammad and Peterson claim that the ad mission of this repeated testimony was error because it was , first, inadmissible hearsay under United States v. Sallins , 993 F.2d 344 (3d Cir. 1993) , and , second, unduly prej udicial and cumulative under Fed. R. Civ. Evid . 403

. We disagree.

Court did not abuse its discretion in permitting this testimony as relevant, we conclude there was no plain error with respect to Muhammad.17 T he radio disp atch statements d id not constitute hearsay under the law of our Circuit. 11

Additionally , the testimonie s were not unduly prejudicial or cumulative. The three officers’ testimonies do not appear to be o f such a nature that they were likely to incite The statements were not offered for their truth but rather offered for the purpose of explaining the context of the officers’ actio ns in responding to the scene and apprehending the suspects

. See Price , 458 F.3d at 210 (holding that “[p]olice officers are permitted under Sallins to explain the background context for their arrival at a scene”). Detective Steven Dunkel explained he did not follow the suspects’ van closely due to a di spatch that reported that the suspects likely were armed

. Officer Adam Ramirez explained that because of the dispatch reports he heard, he sought immediate cover behind a police car upon arriving near the suspects’ parked van . Officer Michael Coppola exp lained that upon hearing the dispatch reports he and his partner retrieved weapons from their lock boxes at police headquarters and, after exiting his vehicle at the

scene , he drew his weapon . Additionally , Detective Dunkel ’s testimony at trial about the very radio dispatch he made , communicating that the suspects had fired a weapon during his pursuit , further demonstrates that the other two officers’ testimony was background

. See id. at 211 (recognizing that Sallins does not apply when the officer who ac tually issued the radio dispatch testifies because it demonstrates that the background testimony was not serving as “illegitimate backdoor eye witness testimony”). Accordingly, the three officers’ testimon ies were not hearsay.

11 Whether a statement constitutes hearsay is a legal ques tion subject to plenary review. See United States v. Price , 458 F.3d 202, 205 (3d Cir. 2006).18 the jury to render an irrational decision

. See Old Chief , 519 U.S. at 180

. Beyond labeling the testimon ies a s “inflammatory,” Muhammad and Peterson have advanced no specific explanation as to how the jury might be unfairly influenced based upon such evidence , and thus it is unclear to us where any undue prejudice might lie. Cf. McQueeney v. Wilmington Trust Co. , 779 F.2d 916, 923 (3d Cir. 1985) ( “The court did not articulate any reasons for its finding of prejudice, and this does not appear to us to be the kind of evidence with obvious or overwhelming potential for unfair prejudice. In the absence of a showing of particularized danger of unfair prejudice, the evidence must be admitted. ”). Reversal of a ruling under Rule 403 is warranted only if the district court’s analysis and ruling was “arbitrary or irrational , ” or if no reasonable person would adopt the di strict court’s view

. See United States v. Universal Rehab

. Serv s. (PA), Inc ., 205 F.3d 657, 665 (3d Cir. 2000) (en banc) ; Green , 617 F.3d at 239

. Because no reasonable person could
agree here that the prejudicial effect of the evidence , if any, outweighe d its probative value , we determine that the District Court did not abuse its discretion by failing to exclude the three officers’ testimonies as unduly prejudic ial

. Finally , t he testimony concerning the police dispatches was brief in the context of the wi tnesses’ individual testimon ies , and the overall trial ; a ny contribution of the testimonies to the length of trial was minimal . I t would not be arbitrary or irrational to
reason that any “ contribution to the length of trial ” was outweighed by the “ contrib ution to the determination of truth ” concerning the context of the officers’ conduct

. See United
States v. Cross , 308 F.3d 308, 326 (3d Cir. 2002) (quoting United States v. Williams , 81 F.3d 1434, 1443 (7th Cir. 1996)).19 Accordingly, the D istrict C ourt did not abuse its discretion in allowing the three witnesses to testify about the radio dispatches they heard concerning the discharge of firearms during the suspects’ flight from the bank

. F

. In another evidentiary challenge concerning an audio recording o f Detective Dunkel’s police radio dispatch report , Muhammad and Peterson argue that the recording , in which Detective Dunkel exclaims, “Shots fired! Shots fired!,” was improperly admitted . The recording , they claim, was irrelevant, unduly prejudicial, and cumulative. 12

Our Court has “consistently treated escape as part and parcel of a bank robbery, including federal bank robbery as defined in 18 U.S.C. § 2113” and recognized that acts incidental to an escape, such as weapon discharges, are “‘within the scope of the federal Bank Robbery Act, 18 U.S.C. § 2113(d),’ and thus within § 2113(a) as well.” United States v. Williams , 344 F.3d 365, 372 (3d Cir. 2003) (quotin g Gov ’ t of V.I. v. Dowling , 633 F.2d 660, 668

- 69 (3d Cir. 1980)). Thus, evidence showing that the suspects discharged a firearm during the chase , as the recording demonstrates , was probative of the offenses charged. Furthermore, the probative value of th e recording outweigh s any undue prejudice that Detective Dunkel’s excited tone , as heard in the recording , may have prompted. Additionally, t he recording was not cumulative since i ts “ contribution to We conclude that no abuse of discretion occurred by admitting the recording into evidence

.

12 The parties agree that the audio recording falls under the hearsay exceptions of Fed. R. Evid. 803 and would not be excluded by the rule against hearsay.20 the length of trial ” did not outweigh its “contribution to the determination of truth” for which i t was offered. See Cross , 308 F.3d at 326. In sum, the admission of the recording did not contravene Fed. R. Evid. 401, 402 , and 403, and thus there was no abuse of discretion.
G

. Muhammad also claims the admi ssion of an audio recording of Officer Ramirez’s police radio dispatch es for the purpose of rebutting the defense’s impeachment of Officer Ramirez’s credibility was in error in two respects

. 13 Because neither of these claims of error were preserved before the District Court , we apply plain error review and conclude b oth of Muhammad’s arguments are without merit. 14 First, Muhammad argues that Officer Ramirez’ s dispatch statement reporting that three or four males exited the van at St. Peter’s University Hospi tal w as improperly admitted as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B)

. He claims that the statement did not satisfy o ne of the four prerequisites for admissibility under t he Rule, which requires that “ the proponent must offer a prio r consistent statement that i s consistent with the declarant’s challenged in

- court testimony.” United States v. Frazier , 469 F.3d 85, 88 (3d Cir. 2006). W e disagree. On direct examination, Officer Ramirez stated he had seen four individuals exit the va n . Muhammad’s cross

- examination suggested that Officer Ramir ez had fabricated

13 Peterson does not advance this argument on appeal.

14 Although Muhammad objected to the admission of the recording at trial, his grounds for objecting were entirely different from his arguments of error on appeal.21 this testimony and proffer ed a videotape deposition taken the day after the robbery . In that videotape, Officer Ramirez stated that he had seen two to three individuals exiting the van, and that it was not until the defendants were arrested that he realize d four individuals were involved. In rebuttal, the Government sought to offer the dispatch recording made at the time of the chase

— in which Officer Ramirez recounted his obser vation that three or four men exited the van

. This dispatch statement is sufficiently consistent with the challenged in

- court testimony for purposes of Fed. R. Evid. 801(d)(1)(B). “ The purpose of Rule 801(d)(1)(B) is not to ‘ bolster[] the veracity of the story told, ’ but to rebut a charge of recent fabrication or improper influence or motive. ” Frazier , 469 F.3d at 88 (quoting Tome v. United States , 513 U.S. 150, 158 (1995)). It follows that the rule allows the “ use of earlier statements that are g eneral ly consistent with the testimony at trial. ” United States v. Casoni , 950 F.2d 893 , 904 (3d Cir. 1991) ; see also United States v. Vest , 842 F.2d 1319, 1329 (1st Cir. 1988) (“[A] prior consistent statement need not be identical i n every detail to the declar ant’ s . . . testimony at trial

. . . . ”). Officer Ramirez’s dispatch statement that he observed three to four individual s exit the van is g enerally consistent with his trial testimony that he sa w four individuals exit the van, and thus sufficiently within th e ambit of Rule 801(d)(1)(B). The District Court thus did not commit error, let alone clear or obvious error , in admitting Officer’s
Ramirez’s prior statement under Rule 801(d)(1)(B)

. In his second argument against the admission of the audio of Office r Ramir ez’s dispatch report, Muhammad asserts undu e prejudic e . He claims that the Government played not only Officer Ramirez’s statement concerning the number of individuals that22 emerged from the van, but also additional statements from the same recording , including Officer Ramirez exclaiming, “shots fired,” and stating that he observed a minivan with the back window shot out. Muhammad claims these additional statements were unduly prejudicial. However, in our assessment, those statements do not plainly appear to have
t h e tendency to influence the jury to render an irrational decision

. See also Gatto , 995 F.2d at 457. We conclude that there was no plain error in the admission of t he additional
statements

. IV. Muhammad and Peterson contend that sever al instances of prosecutorial misconduct denied them a right to fair trial

. We conclude that none of the claims of misconduct warrant a new trial.
T he re are four instances of purported prosecutorial misconduct at issue . The first one advanced by the Defe ndants arise s from the Government asking Detective Dunkel on

re - direct examination whether it was “[s]afe to say the defendant wasn’t a very good shot?” The question was prompted by cross

- examination that probed how Detective Dunkel knew a weapon was disc harged at his vehicle during his pursuit of the robbery suspects when no bullet actually struck his vehicle. The Defendants claim that t he Government’s use of the term, “defendant,” instead of the more generic terms, “suspect” or “shooter,” implied , witho ut support, that specifically Muhammad or Peterson discharged the firearm during Detective Dunkel’s pursuit of the suspects’ van . Muhammad and Peterson objected, but the District Court overruled it and did not give a curative instruction

. However, the Di strict Court had instructed the jury both at the23 beginning and end of trial that the lawyers’ statements, arguments, objections, and questions did not constitute evidence and that their decisions in the case could be based only on the evidence presented. 15
Muhammad claim s , a s the second instance of misconduct, that the Government engaged in misconduct by inadvertent ly publish ing to the jury two photogra p h s of bucal swabs used to obtain DNA testing samples from Muhammad and Peterson

. 16

Muhammad and Peterson also claim that the third instance of misconduct occurred when the Government inadvertently publish ed to the jury a photograph of Muhammad wearing an orange sweater which was purportedly taken after his apprehens ion

. Immediately following this brief publication, t he District Court barred the photograph from evidence and gave the jury a curative instruction that the photograph was not in Labels on the swabs i ndicated that the s amples were taken at “ Middlesex Jail. ” Upon Muhammad’s objection, the Court declined to give a curative instruction for the two non

- redacted photographs of the bucal swabs, reasoning that such an instruction would “actually call
more at tention” to the reference to “Middlesex Jail” on the swabs’ labels, and neither Defendant objected. However, the District Court ordered that the photographs be redacted of that information before being presented again to the jury, and neither Muhammad nor Peterson objected.

15 We note that the trial transcript does not transcribe the Court’s preliminary jury instructions, instead noting parenthetically, “Court gives jury instructions.” JA6:8. Nonetheless, in charging the jury at the conclusion of the trial, the Court prefaced its instructions concerning evidence a nd what constitutes as evidence with the comment, “As I told you in my preliminary instructions . . . .” JA681:21.

16 Peterson does not join this argument on appeal.24 evidence and was to be disregarded and that they could only consider document s in evidence and the witness’s testimony

. Finally, M uhammad and Peterson argue that a fourth instance of misconduct arose when the Government argued during closing that certain DNA evidence demonstrated
that a particular mask and certain items of clothi ng were worn by Muhammad during the robbery . Defendants contend this argument was unsupported because they had attacked the weight of the DNA evidence on cross - examination

. The District Court rule d on objections to the first three instances of purporte d misconduct, and we review t hose rulings for abuse of discretion. See United States v.
Brown , 254 F.3d 454, 458 (3d Cir. 2001). However, even if prosecutorial misconduct

occur red , we apply the harmless error standard and will not reverse if it is beyond a reasonable doubt that the constitutional error did not contribute to the judgment

. See United States v. Zehrbach , 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc) . Reversal is warranted only “if we conclude that the prosecutor’ s remarks, taken in the conte xt of the trial as a whole, prejudiced the defendants

. ” Id

. If a defendant did not contemporaneously object to the purported prosecutorial misconduct, as i s the case with the fourth instance of purported misconduct, we review for plain error. See United States
v. Brennan , 326 F.3d 176, 182 (3d Cir. 2003).
E ven if we were to find error for the first three instances of suppose d misconduct , we conclude that the District C ourt was within it s discretion to deny the motions for a mistrial because the supposed a cts of misconduct were harmless, in light of their scope in relation to the context of the trial, the ameliorative effect of any curative instructions , as25 well as the strength of the evidence supporting the jury’s verdict

. See United States v. Gambone , 31 4 F.3d 163, 179 (3d Cir. 2003); Zehrbach , 47 F.3d at 1265. These brief instances of purported misconduct had a negligible impact on the outcome of the trial

. This is particularly so given that the District Court’s various instructions ameliorated any
pos sible prejudicial effect

. Moreover , as we have discussed previously, the convincing evidence that the Government presented against Muhammad and Peterson was overwhelming and supports the convictions. We thus are assured beyond a reasonable doubt that the three incidents of purp orted misconduct did not contribute to Muhammad and Peterson’s convictions. Accordingly, the District Court did not abuse its discretion in denying the motions for mistrial. As to Muha mmad and Peterson’s claim

— the fourth instance o f misconduct

— that the Government made closing arguments unsupported by the record, we find no plain

error. The closing statements of which D efendants complain do not “reveal egregious

error or a m anifest miscarriage of justice. ” Brennan , 326 F.3d at 182 (internal quotations omitted). For one, the ir argument does not account for the fact that t he prosecution connected Muhammad and Peterson to various articles of clothing and masks not only based upon DNA evidence, but also physical and documentary evidenc e that showed Defendants wearing certain articles of clothing while at the bank and at the time of their apprehension. Moreover, we do not find any colorable miscarriage of justice here. Thus, the Court’s refusal to declare a mistrial based on the Govern ment’s statements did not constitute plain error.26 V. Finally , Muhammad and Peterson raise individual ized sentencing cla ims, which we address below.
A. Muhammad challenges the District Court ’s offense level calculation under the U.S. Sentencing Guidelines , contending that a two

- level enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2 (2010) should not have been applied because Note 1 of U.S.S.G. § 3C1.2 and Note 4 of U.S.S.G. § 2K2.4 bar the application of that enhancement. However, neither of these double counting prohibition s applies in these circumstances. 17
Our Court has held that “ [o] nly when the Guidelines explicitly prohibit double counting will it be impermissible to raise a defendant’s offense level under one provision when a nother offense Guideline already takes into account the same conduct.” United States v. Fisher , 502 F.3d 293, 309 (3d Cir. 2007) (quoting United States v. Wong , 3 F.3d 667, 671 (3d Cir. 1993) ) (emphasis added). Note 1 of U.S.S.G. § 3C1.2 is one such doub le counting prohibition. It instructs d istrict c ourts not to apply U.S.S.G. § 3C1.2, a
two

- point enhancement for reckless endangerment during flight, under certain delineated circumstances. Those particular circumstances are when: (1) the District Court applies a Chapter 2 offense guideline, or another Chapter 3 adjustment, that “ results in an

17 Our standard of review is plenary for the District Court’s interpretation of the Senten cing Guidelines, and we apply the abuse

- of

- discretion standard for the application of the Guidelines. See United States v. Tupone , 442 F.3d 145, 149 (3d Cir. 2006).27 equivalent or greater increase in offense level ,” and (2) that resultant offense level is “solely on the basis of the same conduct.” U.S.S.G. § 3C1.2, n

. 1 (emphas is added). Here, the District Court applied the reckless endangerment enhancement for Muhammad based upon the discharge of weapons and reckless driving during flight

. Muhammad contends there was no evidentiary basis to connect him to the reckless driving and as such the only factual predicate for the reckless endangerment enhancement was the discharge of weapons

. Even if we accept this argument , however, the District
Court still did not apply a Chapter 2 offense guideline or other Chapter 3 adjustment tha t result ed in an equivalent or gre ater increase in offense level based upon the sa me conduct. In determining Muhammad’s offense level, the District Court applied only the base level for § 2B3. 1 for Robbery, and specific offense characteristics for taking the property of a
financial institution under § 2B3. 1(b)(1), taking the security officer’s firearm under § 2B3. 1(b)(6), and taking more than $50,000 but less than $250,000 under § 2B3. 1(b)(7). None of the se specific offense characteristics were based on t he same conduct so as to trigger Note 1 of U.S.S.G. § 3C1.2. 18 Likewise, the District Court’s application of the § 2K2.4(b) offense guideline for a 18 U.S.C. § 924 ( c ) violation does not meet the preconditions of Note 1 of U.S.S.G. § 3C1.2. That guideline does not set forth an offense level , but instead provides a guideline sentence , the statutory minimum of ten y ears, which has no impact on an offense level calculation.

18 By contrast, if the District Court had applied, for example, an offense level under § 2B3.1(b)(2)(A) for discharging a firearm during the course of robbery

— which it did not

— then the preconditions of Note 1 of U.S.S.G. § 3C1.2 would be met.28 B ecause there was no offense guideline applied that “ results in an equivalent or
gre ater increase in offense level ” based on the same conduct, Note 1 of U.S.S.G. § 3C1.2 is inapplicable in these circumstances. It follows that Note 1 does not prohibit the application of a reck less endangerment enhancement

. Muhammad also makes a double cou nting argument based on Note 4 of U.S.S.G. § 2K2.4 , urging that Note 4 prohibits the District Court’s application of the two

- level enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2

. We disagree. Note 4 provides that a sentencing court shall “ not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm ” in connection with the sentence for the underlying offense if the defendant is also sentenced under 18 U.S.C. § 924(c) . T he enhancement at issue here is not a weapons enhancement ,

n or a specific offense characteristic pertaining to a weapon

. Rather, it is a Chapter Three adjustment for recklessly endangering others in flight. Unquestionably , Muhammad’s course of conduct du ring the police chase recklessly endangered others. The enhancement for § 3C1.2 is not limited to, or synonymous with, possession, brandish ment, use, or discharge of a weapon. It is designed to increase a defendant’s punishment for precisely the type of dangerous f oot chase that occurred here, one that involved exchang ing gunfire with police in the midst of racing through backyards and darting across driveways and a street in a residential neighborhood

. 19

19 Note 5 of U.S.S.G. §3B1.2 provides that the reckless endangerment enhancement applies if a defenda nt is accountable for conduct that he “induced” or “willfully caused

. ” Muhammad thus would be accountable for the police discharging their weapons which he B ecause Note 4 of29 U.S.S.G. § 2K2.4 only bars speci fic offense characteristics pertaining to weapons, or weapons enhancements, it does not bar the enhancement for reckless endangerment during flight. See Roger W. Haines, Jr., et al., Federal Sentencing Guidelines Handbook : Text and Analysis 802 (2010

- 11 ed.) ( “ [E]nhancements for factors other than guns are not improper double counting [un der Note 4 of U.S.S.G. § 2K2.4].” ). Cf. United States v. Thompson , 515 F.3d 556 , 563 (6th Cir. 2008) (concluding that there was no double counting when the sentencing co urt imposed a sentence for § 924(c) and the “official victim” enhancement under U.S.S.G. § 3A1.2 for the defendant firing a gun at the police); United States v. Docampo , 573 F.3d 1091, 1099

- 1100 (11th Cir. 2009) (holding that Note 4 of U.S.S.G. § 2K2.4 did not prohibit the District Court from relying on the fact that the defendant possessed a firearm in determining whether to apply the

“ mitigating role ” adjustment under U.S.S.G. § 3B1.2 when the defendant was also sentenced under § 924(c)).
In sum , we do not find the District Court abused its discretion in applying the reckless endangerment enhancement for Muhammad’s offense level calculation.
B. Peterson claims that b ecause the District Court procedurally erred by failing to demonstrate on the record cons ideration of the 18 U.S.C. § 3553 (a) factors , as required by 18 U.S.C.§ 3583(e) , i n imposing his revocation sentences for violating supervised

induced or willfully caused by refusing to surrender and pointing his weapon at and firing upon the police

.30 release, those sentences must be vacated and the matter remanded to the District Court for resentencing

. We conc lude otherwise.
W hen , despite the opportunity , a procedural objection is not raised to the district court at the time of sentencing, as is the case here, we review the procedural
reasonableness of a sentence only for plain error. See United States v. Park er , 462 F.3d 273, 278 ( 3d Cir. 2006) (applying plain error review to an unpreserved claim of error based on the sentencing court’s failure to give a sufficie nt statement of reasons under § 3553(c) )

. However, e ven if we assume a clear and obvious error her e , we cannot
vacate Peterson’s revocation sentence s unless the error affects Peterson’s substantial rights

. Peterson has made no showing how the outcome of his violation of sentence hearing would have been altered in the absence of such error . In other w ords, he has not offered proof t hat there was some likelihood that the sentencing court would have imposed a lower sentence

. Indeed , Peterson did not make any challenges to his revocation sentence before the District Court , and he has not raised on appeal a substantive reasonableness challenge to the sentence

. Because there has been no showing that Peterson ’s s ubstantial rights were affected, no plain error occurred.
VI. For the reasons set forth above, we will affirm the District Court’ s judgment s agains t Muhammad and Peterson.