PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          _____________

          No. 10-2790
         _____________

  UNITED STATES OF AMERICA

                v.

      GLORIOUS SHAVERS,
              a/k/a G,
          a/k/a G-Bucks,
       a/k/a Julious Colzie,
       a/k/a Glorious Grand

         Glorious Shavers,

            Appellant
         _____________

          No. 10-2931
         _____________

  UNITED STATES OF AMERICA

                v.

         JERMEL LEWIS,
                    a/k/a STAR,
                  a/k/a PR-STAR,
                       a/k/a P

                   Jermel Lewis,

                     Appellant
                  _____________

                   No. 10-2971
                  _____________

         UNITED STATES OF AMERICA

                        v.

                ANDREW WHITE,

                    Appellant
               _________________

   On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
(Crim. Nos. 08-01616-001, 08-0161-002, 08-0161-003)
      District Judge: Honorable J. Curtis Joyner

              Argued March 19, 2012
               _________________

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

             (Filed: August 27, 2012)




                        2
Keith M. Donoghue, Esq. (Argued)
Robert Epstein, Esq.
Kai N. Scott, Esq.
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
        Attorneys for Appellant Glorious Shavers

Paul J. Hetznecker, Esq. (Argued)
Suite 911
1420 Walnut Street
Philadelphia, PA 19102
       Attorney for Appellant Jermel Lewis

Carina Laguzzi, Esq.
Laguzzi & Associates
1500 John F. Kennedy Boulevard
Suite 200
Philadelphia, PA 19102
       Attorney for Appellant Andrew White

Robert A. Zauzmer, Esq. (Argued)
Arlene D. Fisk, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Attorneys for Appellee




                              3
                    __________________

                         OPINION
                    __________________

CHAGARES, Circuit Judge.

       This is a consolidated appeal by three codefendants,
Glorious Shavers, Andrew White, and Jermel Lewis
(collectively referred to as the “appellants”), who were
convicted of robbery affecting interstate commerce,
conspiracy to commit robbery affecting interstate commerce,
witness tampering, and using and carrying firearms during
and in relation to a crime of violence. We will vacate
Shavers’s and White’s witness tampering convictions and
Shavers’s eight-year term of supervised release. We will
uphold the three appellants’ convictions on all other counts
and will affirm Lewis’s sentence. Finally, we will remand for
the District Court to resentence Shavers and White in
accordance with this opinion.

                               I.

        This case arose out of a robbery on November 8, 2005
at a single-family house in North Philadelphia. The house
owner, Jeanette Ketchmore (“Jeanette”), had for several years
run an unlicensed bar, or “speakeasy,” out of her basement.
At trial, she described her activity as a party at which family,
friends, and acquaintances would socialize and occasionally
play cards. The speakeasy was not open to the general public.
Jeanette purchased alcohol at a retail store in Philadelphia and
sold it without a license to her guests for $3-$4 per drink.
The brands of alcohol sold included some that are




                               4
manufactured outside of Pennsylvania such as Hennessy
cognac, Gordon’s gin, Seagram’s gin, and Taylor’s port wine.
        When the appellants entered Jeanette’s house on
November 8, 2005 at 5:30 a.m., six to seven people were in
the first floor dining room playing cards. The parties dispute
whether alcohol sales had ceased for the night. The three
appellants entered the residence displaying firearms and
wearing dark-colored hooded sweatshirts with the hoods
drawn tightly around their faces. The appellants forced the
patrons into the basement and ordered them to lie down on
the floor. One of the appellants went to the second floor and
forced Jeanette’s son, Rickey Ketchmore (“Rickey”), to come
downstairs to join the patrons. The appellants then went
through everyone’s pockets and stole two cell phones, a
wallet, and approximately $121 in cash. No money was
stolen directly from Jeanette, however. The appellants also
rummaged through the basement and first floor of the house.
Jeanette testified that the appellants went through her
refrigerator and kept asking where the “weed” (marijuana),
“wet” (PCP), and “oil” (heroin or PCP) was. 1 Joint Appendix
(“JA”) 1168–69, 1217. They also asked Jeanette where “the
money” was. 

the police arrived, the three appellants ran out of
the house and down the street. White was seen tossing a
silver gun as he ran. White and Shavers were arrested in the

       1
          Before trial, the Government moved for leave to file
a superseding indictment adding an allegation that the
appellants attempted to steal drugs from Jeanette. The
District Court denied that request due to discovery violations
and did not permit the admission of evidence supporting that
theory.




                              5
area soon thereafter. White had two cell phones that were
stolen from the speakeasy patrons and $49 in cash, including
twenty-nine one-dollar bills. Shavers had three live shotgun
shells in his pocket and $87 in cash, including sixty-two one-
dollar bills. After the police apprehended Shavers and White,
they returned to Jeanette’s house and asked eyewitnesses
Alberto Vasquez and Brian Anderson whether they
recognized the two men sitting in the police vehicles.
Vasquez and Anderson identified Shavers and White as two
of the three assailants. Lewis was apprehended years later
after an investigation.

       Shavers and White were originally charged with
Pennsylvania offenses and kept in state custody. On March
20, 2008, however, the United States Attorney charged them
with robbery affecting interstate commerce, in violation of the
Hobbs Act, 18 U.S.C. §§ 1951(a) and 2, and using and
carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. §§ 924(c) and 2. 2 On July
10, 2008, a superseding indictment added Lewis to the first
two counts, and also added charges against all three
appellants of attempts to intimidate, threaten, and/or corruptly
persuade a witness in an official proceeding, in violation of
the Victim and Witness Protection Act of 1982, 18 U.S.C. §
1512(b)(1). The witness intimidation charges were largely
based on telephone calls that the appellants conducted on
state prison telephones in which they made incriminating
comments. On August 20, 2009, the Government filed a
second superseding indictment adding additional witness
tampering counts and a count of conspiracy to commit

       2
         The state charges were nolle prossed after
commencement of the federal prosecution.




                               6
robbery in violation of the Hobbs Act against all three
appellants.
       A joint trial of the three appellants commenced on
September 9, 2009 in the United States District Court for the
Eastern District of Pennsylvania. After six days of testimony,
the jury found all three appellants guilty of the Hobbs Act and
§ 924(c) violations, and found Shavers and White guilty of
three counts of witness tampering each. Lewis was acquitted
of all witness tampering charges.           After denying the
appellants’ motions for judgments of acquittal, the District
Court sentenced Shavers to 144 months of incarceration with
an eight-year term of supervised release, Lewis to 141 months
of incarceration with five years of supervised release, and
White to 196 months of incarceration with five years of
supervised release. All three sentences included a mandatory
minimum consecutive term of eighty-four months on the §
924(c) count. The appellants filed a timely appeal raising ten
arguments that we will address in turn. 3

              II.   The Hobbs Act Convictions

                              A.

      Shavers and White first contend that the District Court
erroneously instructed the jury that a robbery need only have
a de minimis or potential effect on interstate commerce in
order to violate the Hobbs Act. While the appellants

      3
           The District Court had jurisdiction over the
prosecution of this criminal action pursuant to 18 U.S.C. §
3231 and we have jurisdiction over the appeal pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).




                              7
acknowledge that our controlling precedent forecloses relief
on this claim, they seek to preserve it for future review.
       We exercise plenary review over a challenge to the
legal accuracy of jury instructions. Armstrong v. Burdette
Tomlin Mem’l Hosp., 

, 245 (3d Cir. 2006). The
Hobbs Act provides:

       Whoever in any way or degree obstructs,
       delays, or affects commerce or the movement of
       any article or commodity in commerce, by
       robbery or extortion or attempts or conspires so
       to do, or commits or threatens physical violence
       to any person or property in furtherance of a
       plan or purpose to do anything in violation of
       this section shall be fined under this title or
       imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). “Commerce” is defined as

       commerce within the District of Columbia, or
       any Territory or Possession of the United
       States; all commerce between any point in a
       State, Territory, Possession, or the District of
       Columbia and any point outside thereof; all
       commerce between points within the same State
       through any place outside such State; and all
       other commerce over which the United States
       has jurisdiction.

to the requirement that a Hobbs Act offense
“obstructs, delays, or affects” interstate commerce, “the reach




                              8
of the Hobbs Act is coextensive with that of the Commerce
Clause of the United States Constitution.” United States v.
Walker, 

, 179 (3d Cir. 2011) (quotation marks
omitted). The Commerce Clause delegates to Congress the
power “[t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” U.S.
Const. art. I, § 8, cl. 3. In United States v. Lopez, which
involved a challenge to the Gun-Free School Zones Act of
1990, 18 U.S.C. § 922(g)(1)(A), the United States Supreme
Court held that there are “three broad categories of activity”
that Congress may regulate under the Commerce Clause:
(1) “the use of the channels of interstate commerce[;]” (2)
“the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may
come only from intrastate activities[;]” and (3) “those
activities having a substantial relation to interstate
commerce.” 

, 558–59 (1995). The Lopez Court
concluded that the possession of a gun in a local school zone
did not fall into any of those categories. In particular, the
regulated activity did not have a substantial relation to
interstate commerce because “[t]he possession of a gun in a
local school zone is in no sense an economic activity that
might, through repetition elsewhere, substantially affect any
sort of interstate commerce.” 

District Court in this case instructed the jury on
the interstate commerce element as follows:

      The third element that the Government must
      prove beyond a reasonable doubt is that the
      Defendant’s conduct affected or could have
      affected interstate commerce. Conduct affects
      interstate commerce if it in any way interferes




                              9
      with[,] changes, alters the movement or
      transportation or flow of goods, merchandise,
      money or other property in commerce between
      or among the states. The effect can be minimal.

      It is not necessary to prove that the Defendant
      intended to obstruct . . . delay or interfere [with]
      interstate commerce or that the purpose of the
      alleged crime was to affect interstate commerce.
      Further, you do not have to decide whether the
      affect on interstate commerce was to be harmful
      or beneficial to a particular business or to
      commerce in general. You do not even have to
      find that there was an actual effect on
      commerce. All that is necessary to prove this
      element is that the natural consequences of the
      offense potentially caused an effect on interstate
      commerce to any degree, however minimal or
      slight.

JA 2016 (emphasis added). Shavers and White argue that the
District Court’s instruction was incorrect. They interpret
Lopez as holding that Congress may regulate only conduct
that substantially affects interstate commerce, and may not
regulate conduct that has a mere minimal or potential effect
on interstate commerce.

       Our decisions have consistently and firmly rejected
that argument. See, e.g., United States v. Urban, 

, 766 (3d Cir. 2005) (“[W]e have already rejected the
argument that Lopez and its progeny require proof of a
‘substantial effect’ on commerce in an individual case in
order to show a Hobbs Act violation.”). We have held instead




                              10
that “[i]f the defendants’ conduct produces any interference
with or effect upon interstate commerce, whether slight,
subtle or even potential, it is sufficient to uphold a
prosecution under [the Hobbs Act].” United States v.
Haywood, 

, 209–10 (3d Cir. 2004) (quotation
marks omitted). A “reasonably probable effect on commerce,
however minimal,” is sufficient to meet the interstate
commerce jurisdictional prerequisite under the Hobbs Act.

; see also United States v. Clausen,

, 711 (3d Cir. 2003) (“[T]he District Court did
not err when it instructed the jury that it need only find that
each robbery had a minimal effect on interstate commerce.”).

        While we acknowledge that our long-standing
precedent sets a rather low hurdle for the Government in
Hobbs Act cases, we conclude that our interpretation of the
interstate commerce jurisdictional requirement is supported
by Supreme Court precedent. In Gonzales v. Raich, the
Supreme Court upheld the application of provisions of the
Controlled Substances Act, 21 U.S.C. § 801 et seq., that
criminalize the manufacture, distribution, and possession of
marijuana to intrastate growers and users of marijuana,
holding that Congress possesses the “power to regulate purely
local activities that are part of an economic ‘class of
activities’ that have a substantial effect on interstate
commerce.” 

, 17 (2005) (citing Wickard v.
Filburn, 

, 128–29 (1942)).               Under the
aggregation theory relied upon in Raich, the Commerce
Clause supports federal regulation of an economic class of
activity that, in the aggregate, substantially affects interstate
commerce. 

is the case even where an
individual crime on its own has only a minimal effect on
interstate commerce. 

a general regulatory




                               11
statute bears a substantial relation to commerce, the de
minimis character of individual instances arising under that
statute is of no consequence.” (quotation marks omitted)).
Even a potential effect may suffice. 

J.,
concurring) (“Most directly, the commerce power permits
Congress not only to devise rules for the governance of
commerce between States but also to facilitate interstate
commerce by eliminating potential obstructions, and to
restrict it by eliminating potential stimulants.”). We have
opined that “the Hobbs Act regulates quintessentially
‘economic’ activities” because “property crimes like robbery
and extortion are — unlike the possession of a gun in a school
zone or gender-motivated violence — indisputably
‘economic’ under our post-Lopez precedents.” 

. Like the statute in Raich, the Hobbs Act
regulates an economic “class of activities” that, in the
aggregate, has a substantial effect on interstate 

. The proper standard for such activity,
therefore, is exactly as the District Court articulated it to the
jury.

                               B.

        The three appellants further assert that, even under the
standard as the District Court expressed it, the Government
failed to present sufficient evidence that their crimes had an
adequate effect on interstate commerce to meet the
jurisdictional requirement in the Hobbs Act. On challenges to
the sufficiency of the evidence, we apply “a particularly
deferential standard of review.” United States v. McGuire,

, 206 n.2 (3d Cir. 1999). We do not weigh the
evidence or assess the credibility of the witnesses. 

the evidence in the light most favorable to the




                               12
government, and will sustain the verdict if any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” 

We “afford deference to a jury’s findings, and draw all
reasonable inferences in favor of the jury verdict.” United
States v. Moyer, 

, 206 (3d Cir. 2012) (quotation
marks omitted). We will overturn the verdict “only when the
record contains no evidence, regardless of how it is weighted,
from which the jury could find guilt beyond a reasonable
doubt.” 

just discussed, the effect on commerce of a
Hobbs Act robbery may be shown by a “reasonably probable
effect on commerce, however minimal.” 

. Where the robbery “produces any interference with
or effect upon interstate commerce, whether slight, subtle or
even potential, it is sufficient to uphold a prosecution under
[the Hobbs Act].” 

(quotation
marks omitted). In United States v. Walker, for example, we
held that the robbery of a drug dealer whose drugs originated
in another state had a “direct nexus” to interstate commerce
within the meaning of the Hobbs 

. By
robbing a drug dealer, the defendants “directly [sought] to
obstruct the movement of a commodity in commerce.” 

marks and alterations omitted).

       In United States v. Haywood, whose facts are
analogous to the facts in this case, the defendant was
convicted under the Hobbs Act of robbing a Virgin Islands
tavern of approximately 

. We held
that the interstate commerce nexus was satisfied because the
tavern sold beer that was manufactured outside of the Virgin
Islands. 

in United States v. Clausen, we




                               13
held that there was a sufficient nexus to interstate commerce
where the defendants had robbed six businesses that
purchased supplies from other states, and/or had employees or
customers from other 

. We
underscored that “‘the cumulative result of many Hobbs Act
violations is a substantial effect upon interstate commerce,’
and that substantial effect empowers Congress to regulate
pursuant to the Commerce Clause.” 

United States v. Robinson, 

, 1215 (5th Cir.
1997)). 4

      4
          In some cases, we have also turned to the “depletion
of assets” theory to explain the nexus between the offense
charged and interstate commerce. In United States v. Urban,
for instance, we reviewed the convictions of several city
plumbing inspectors who had committed extortion, allegedly
in violation of the Hobbs Act, by accepting payments from
the plumbers whose work they 

.
We held that the Hobbs Act jurisdictional element was
satisfied because the extortion depleted the assets that the
plumbers had available to purchase supplies made out-of-
state. 

We explained that “the depletion of
assets of a person engaged in interstate commerce has at least
a ‘potential’ effect on that person’s engagement in interstate
commerce.” 

theory is not helpful here. While Rickey testified
that he saw one of the perpetrators holding two bottles of
liquor during the robbery, the Government told the jury in its
closing argument that those bottles did not leave the house.
Thus, we do not rely on that testimony as evidence that
proceeds of the business were stolen.




                             14
        On this record, there was sufficient evidence from
which a rational jury could find beyond a reasonable doubt
that Jeanette was running a business that had the requisite
nexus to interstate commerce. Although the speakeasy was
not a licensed bar, it was selling alcohol and the people
playing cards at the time of the robbery were its customers.
Jeanette had been operating the speakeasy for “years” at the
time of the robbery. JA 1157. In her testimony, Jeanette
agreed that the speakeasy was a business and indicated that
she was making a profit. 

(“[W]e would
purchase more beer, alcohol, and sometimes I might have
enough to pay a bill to help me with my — send my child to
school.”). Like in Haywood, Jeanette sold alcohol that was
imported from out of state. Although that connection to
interstate commerce is admittedly indirect, it is no more so
than in the cases discussed above and it is a sufficient nexus
to interstate commerce under our jurisprudence. See 

, 767; 

; 

; see also United States v. Elias, 

, 189 (2d Cir. 2002) (holding that the interstate commerce


        The Government also avers that White’s and Shavers’s
possession of large numbers of one-dollar bills was consistent
with the speakeasy prices of $3-$4 per drink and
demonstrates that they absconded with business assets. The
appellants respond that the possession of many one-dollar
bills is more consistent with the victims’ card playing. Either
way, it was for the jury to decide, based on the other
evidence, which inference to draw from the denominations.
Our role is not to weigh the evidence with respect to such
factual questions so long as there was some evidence
presented from which a reasonable jury could have found the
essential elements of the crime.




                              15
requirement for a Hobbs Act violation was met where the
defendant robbed a New York grocery store that sold goods
purchased in New York but produced outside of New York
because the robbery “depleted assets that might have been
utilized to purchase out-of-state goods”); United States v.
Mapp, 

, 336 n.13 (2d Cir. 1999) (holding that
the Hobbs Act jurisdictional nexus was met by the robbery of
a delicatessen that sold goods produced out of state, without
mentioning whether the goods were purchased from out-of-
state or in-state suppliers).

        There was also evidence here from which a rational
jury could find beyond a reasonable doubt that the robbery
had an effect, albeit slight or potential, on interstate
commerce. For instance, Jeanette testified that, after the
robbery, she limited her guests to friends and family and then
shut down the operation completely a few months later. At
least one speakeasy customer, Alberto Vasquez, chose not to
return and spend his money at the speakeasy after the
robbery. From that evidence, a jury could reasonably infer
that the robbery caused the business to close. Causing a
business engaged in interstate commerce to close has, or at
least potentially has, an effect on interstate commerce. See
United States v. Jimenez-Torres, 

, 8 (1st Cir. 2006)
(holding that the Government can satisfy the Hobbs Act
interstate commerce requirement by showing that the robbery
resulted in the closure of a business engaged in interstate
commerce). Moreover, such conduct, in the aggregate, would
have a substantial effect on interstate commerce. See 

. Although this robbery was of a small
business that purchased alcohol sold in interstate commerce,
if robberies occurred at and led to the closure of such
establishments on a large scale, the effect on interstate




                             16
commerce would be substantial. For that reason, the size of
Jeanette’s business and the fact that the appellants stole only
$121 dollars, a wallet, and two cell phones did not make this
crime too small to satisfy the de minimis standard. See

(holding that a robbery of $40 to $50
satisfied the de minimis standard); 

, 211 n.7 (holding that the de minimis threshold was met
by the robbery of $50 to $70).

        The appellants maintain that the facts here are
analogous to those in United States v. McGuire, in which the
defendant was charged with a violation of the federal
explosives statute, 18 U.S.C. § 844(i), for the destruction of a
personal car that was used periodically by a small intrastate
catering 

. We held that the
Government failed to establish the requisite nexus to
interstate commerce because there was no evidence as to how
often the car was used for the business or that a container of
orange juice from another state that was found in the car was
related to the catering business. 

“the
jury was required to guess at” the connection between the car
and the catering business. 

is easily
distinguishable from this case, where the jury was not left to
guess at the connections between the victims of the robbery
and the business, and between the business and interstate
commerce. Additionally, it was undisputed in McGuire that
the catering business did not lose money or customers due to
the defendant’s conduct. 

to the contrary,
there was certainly adequate evidence from which a jury
could infer that the robbery was an attempt to — and did in
fact — affect a business operating in interstate commerce.




                              17
        The appellants invite us to follow the Court of Appeals
for the Sixth Circuit and impose a heightened interstate
commerce requirement when the victim of the alleged crime
is an individual rather than a business. In United States v.
Wang, the Court of Appeals for the Sixth Circuit held that the
Hobbs Act interstate commerce nexus was too attenuated
where the defendant robbed the owners of a business in their
home. 

, 240 (6th Cir. 2000). The Court
concluded that, when the Government seeks to establish a
nexus between an individual victim and a business engaged in
interstate commerce, “that connection must be a substantial
one — not one that is fortuitous or speculative.” 

In Wang, some of the stolen money belonged to the
victims’ restaurant that operated in interstate commerce but,
because the robbery was of a home, the Government needed
to do more than show that the victims owned a business. 

appellants also note cases in which the interstate
commerce nexus was held to be too tenuous because the
robbery was directed at an individual in his or her personal
capacity rather than at a business. See United States v.
Perrotta, 

, 38–40 (2d Cir. 2002) (holding that the
interstate commerce nexus was too attenuated where extortion
was directed at a victim who worked for an entity engaged in
interstate commerce, but was aimed at him in his personal
capacity, not in his official capacity); United States v.
Quigley, 

, 910–11 (8th Cir. 1995) (holding that
the robbery of two individuals en route to a liquor store did
not have a potential effect on interstate commerce); United
States v. Collins, 

, 99–100 (5th Cir. 1994) (holding
that the Hobbs Act did not apply to the robbery of a computer
company executive in his home, even though the crime may




                              18
have prevented him from getting to work or making business
calls because his “only connection with interstate commerce
was his employment by a business engaged in interstate
commerce”). The appellants further argue that the connection
must be even stronger when a home is robbed. Indeed, we
have exercised caution when assessing a Hobbs Act
prosecution for the robbery of a home. Jimenez-Torres, 435
F.3d at 7–8 (“Where . . . the crime concerns the robbery of a
home rather than of a business, we approach the task of
applying the de minimus standard with some caution, lest
every robbery (which by definition has some economic
component) become a federal crime.”).

       We decline to adopt the heightened standard set forth
in Wang. In this circuit, a robbery under the Hobbs Act need
only have a “reasonably probable effect on commerce,
however minimal.” 

. The
“substantial” connection required in Wang has no basis in our
case law and adopting it would contradict our adherence to
the requirement that a robbery need only “produce[] any
interference with or effect upon interstate commerce, whether
slight, subtle or even potential,” in order to support
prosecution under the Hobbs Act. 

(quotation marks omitted).

       Moreover, Wang and the other cases in which the
robberies were directed at individuals in their personal
capacity rather than at businesses are inapposite. The
appellants here did not rob individuals in their personal
capacity or in their homes. To the contrary, the robbery
occurred in Jeanette’s place of business, her customers were
victimized and robbed, and there was evidence that the
robbery targeted business assets. Testimony from customers




                             19
of the speakeasy indicated that the gatherings at Jeanette’s
were not merely social events with friends. For instance,
Vasquez testified that Jeanette’s house was “a place where
people would go after time inside the bars that they closed up
at 2:00. You stop in for a couple drinks. It’s known on the
streets as a speakeasy.” JA 962–63. Likewise, Anderson
testified that the basement was “set up like a bar” and that “it
was a speakeasy.” 

Even if we assume that
alcohol was no longer being sold at the time of the robbery,
that disputed fact does not alter our conclusion, as the reason
the victims were in Jeanette’s house was due to her business
selling alcohol and they were still playing cards in the dining
room when the robbery occurred. Thus, there was sufficient
evidence that appellants robbed individuals, but in their
capacity as customers of a business.

       There was also evidence in the record from which a
rational jury could conclude that the appellants targeted the
assets of Jeanette’s business, not solely the customers. The
appellants had a meeting the night before the robbery in
which they learned about a house with “a lot of money in it.”
JA 1430. During the robbery, they asked Jeanette where “the
money” was and rummaged through her refrigerator. App.
1167–69. The nexus to interstate commerce in this case was,
therefore, more direct than in Wang and the other cases cited
by the appellants. See 

(holding that
the connection between the robbery and interstate commerce
was “much more direct” than in Wang because, at the time of
the robbery, the victim in Walker was selling illegal drugs
that had traveled through interstate commerce).

      We recognize that this case stands at the outer limit of
Hobbs Act jurisdiction and it is far from obvious which cases




                              20
are purely matters for state prosecution. The Hobbs Act
interstate commerce question must be resolved on a case-by-
case basis. See 

(noting that a “case-
by-case inquiry” is undertaken for statutes containing a
jurisdictional element). When we view the evidence in this
case in the light most favorable to the Government, we
conclude that there was a sufficient nexus to interstate
commerce to support the appellants’ convictions under the
Hobbs Act.

         III.   The Witness Tampering Convictions

       Shavers and White next contend that the evidence
presented at trial was insufficient to support their convictions
for witness tampering. Despite the considerable deference
that we afford to a jury’s findings in reviewing a conviction
for sufficiency of the evidence, we agree and conclude that
the evidence in this case does not support the witness
tampering convictions.

                              A.

      In relevant part, the Victim and Witness Protection Act
of 1982 (“VWPA”) provides:

       (b) Whoever knowingly uses intimidation,
       threatens, or corruptly persuades another
       person, or attempts to do so, or engages in
       misleading conduct toward another person, with
       intent to–

       (1) influence, delay, or prevent the testimony of
       any person in an official proceeding;




                              21
      (2) cause or induce any person to--

             (A) withhold testimony, or withhold a
             record, document, or other object, from
             an official proceeding;

             (B) alter, destroy, mutilate, or conceal an
             object with intent to impair the object’s
             integrity or availability for use in an
             official proceeding;

             (C) evade legal process summoning that
             person to appear as a witness, or to
             produce a record, document, or other
             object, in an official proceeding; or

             (D) be absent from an official proceeding
             to which such person has been
             summoned by legal process; or

      (3) hinder, delay, or prevent the communication
      to a law enforcement officer or judge of the
      United States of information relating to the
      commission or possible commission of a
      Federal offense or a violation of conditions of
      probation supervised release, parole, or release
      pending judicial proceedings;

      shall be fined under this title or imprisoned not
      more than 20 years, or both.

18 U.S.C. § 1512(b).




                             22
      Shavers and White were convicted of violating §
1512(b)(1), which seeks to safeguard anticipated testimony in
an “official proceeding.” An “official proceeding” for the
purposes of the VWPA is defined as

      a proceeding before a judge or court of the
      United States, a United States magistrate judge,
      a bankruptcy judge, a judge of the United States
      Tax Court, a special trial judge of the Tax
      Court, a judge of the United States Court of
      Federal Claims, or a Federal grand jury.

VWPA explicitly provides that “an
official proceeding need not be pending or about to be
instituted at the time of the offense.” 

does, however, need to be a connection between the
defendant’s conduct and the official proceeding. In Arthur
Anderson LLP v. United States, the United States Supreme
Court reviewed convictions under § 1512(b)(2)(A) and (B).

, 698 (2005). The Court held that to satisfy the
“official proceeding” requirement under those subsections,
the Government must show a “nexus” between the
defendant’s conduct and a particular proceeding. 

To meet that nexus requirement, the Government must
prove that the defendant “ha[d] in contemplation [a]
particular official proceeding” when he or she attempted to
interfere with evidence or a witness. 

proceeding need not have been pending or about to be
instituted, but it must have been foreseeable. 

the defendant “must believe that his actions are likely
to affect a particular, existing or foreseeable official




                              23
proceeding.” United States v. Kaplan, 

, 125 (2d
Cir. 2007) (citing Arthur 

).

       While the Court in Arthur Anderson interpreted §
1512(b)(2)(A) and (B) only, the Court’s analysis and
application of the “nexus” requirement applies with equal
force to § 1512(b)(1). All three subsections qualify the
prohibited conduct by requiring that the defendant target
testimony or evidence in an “official proceeding.”
Consistency demands that we apply the Arthur Anderson
nexus requirement to § 1512(b)(1). See United States v.
Matthews, 

, 708 (7th Cir. 2007) (holding that
Arthur Anderson applies to prosecutions under § 1512(c)(1)
because that subsection also “speaks in terms of the
relationship between obstructive acts and a proceeding.”);

(noting that the jury instructions on
the § 1512(b)(1) charge “undoubtedly needed to comply with
the nexus requirement discussed in Arthur Anderson”).

        Accordingly, the Government in a § 1512(b)(1)
prosecution is tasked with proving that the defendant
contemplated a particular “official proceeding” that was
foreseeable when he or she engaged in the proscribed
conduct. As part of that requirement, the Government must
demonstrate beyond a reasonable doubt that the contemplated
proceeding met the definition of “official proceeding”
articulated in § 1515(a)(1)(A). The VWPA is clear, however,
that the Government is not required to show that the
defendant knew that the contemplated proceeding was federal
in nature:

      In a prosecution for an offense under this
      section, no state of mind need be proved with




                             24
      respect to the circumstance . . . that the official
      proceeding . . . is before a judge or court of the
      United States, a United States magistrate judge,
      a bankruptcy judge, a Federal grand jury, or a
      Federal Government agency . . . .

18 U.S.C. § 1512(g)(1).

        The parties dispute whether the United States Supreme
Court’s recent decision in Fowler v. United States affects our
analysis. 

(2011). In Fowler, the Court
considered the federal nature requirement in § 1512(a)(1)(C),
which proscribes the murder of a person with the intent to
“prevent the communication by any person to a law
enforcement officer or judge of the United States of
information relating to the commission or possible
commission of a Federal offense.” The federal prosecution in
Fowler arose after Charles Fowler shot a police officer who
caught him and his associates suiting up to rob a bank. 131 S.
Ct. at 2048. It was clear that Fowler had shot the officer with
the intent to prevent him from speaking to other law
enforcement officers but that he did not have any specific law
enforcement officer or set of officers in mind at the time. To
satisfy the federal nexus requirement in such a situation, the
Court held, the Government must demonstrate “a reasonable
likelihood that, had, e.g., the victim communicated with law
enforcement officers, at least one relevant communication
would have been made to a federal law enforcement officer.”

in original).

       Unresolved is whether the “reasonable likelihood” test
set forth in Fowler applies to prosecutions brought under §
1512(b)(1) as well. We decide that question in the negative.




                              25
Critically, Fowler was a prosecution under § 1512(a)(1)(C),
which, like § 1512(b)(3), is an investigation-related provision
aimed at protecting the communication of information to law
enforcement. Once again, § 1512(b)(1) is distinct from those
provisions because it seeks to protect anticipated testimony in
a particular official proceeding. See 

(“Unlike [§ 1512] (b)(2) and 18 U.S.C. § 1503, which protect
particular ‘official proceedings,’ [§ 1512] (b)(3) protects the
general ability of law enforcement agents to gather
information relating to federal crimes . . . .” (citation
omitted)). The “reasonable likelihood” standard set forth in
Fowler relates to the probability of a victim communicating
information to a federal officer, an element required under the
investigation-related provisions of § 1512 but not the official
proceeding provisions.       Thus, by its very nature, the
“reasonable likelihood” standard set forth in Fowler is
fashioned for the analysis of a materially different offense
than the one described in § 1512(b)(1). For the same reasons
that the holding in Arthur Anderson does not apply to
§ 1512(b)(3) offenses and the other investigation-related
offenses in the VWPA, it would be illogical to employ the
Fowler holding in prosecutions brought under the VWPA
provisions that require contemplation of an “official
proceeding.”

       Furthermore, it is difficult to conceive of how we
could reconcile the “reasonable likelihood” standard from
Fowler with the holding in Arthur Anderson, which requires
that the Government prove that the defendant contemplated a
particular official proceeding. The Fowler decision addressed
a situation in which the defendant did not have in
contemplation a particular group of law enforcement officers.
Thus, if applied to § 1512(b)(1), the rule set forth in Fowler




                              26
would       directly   contradict     the   Arthur    Anderson
pronouncement. See Arthur 

(“A
knowingly corrupt persuader cannot be someone who
persuades others to shred documents under a document
retention policy when he does not have in contemplation any
particular official proceeding in which those documents might
be material.” (alterations and quotation marks omitted)). It is
telling that the Fowler opinion does not mention Arthur
Anderson. If the Supreme Court intended to overrule Arthur
Anderson and for all of the VWPA to be governed by Fowler,
it presumably would have mentioned Arthur Anderson and
explained why. See, e.g., Shalala v. Ill. Council on Long
Term Care, Inc., 

, 18 (2000) (“The Court does not
normally overturn, or so dramatically limit, earlier authority
sub silentio.”). Instead, the Court crafted a distinct inquiry
for prosecutions under the VWPA provisions that target
interference with witness communication to law enforcement
officers. This again leads us to the logical conclusion that
there are at least two lines of jurisprudence developing
separately under the VWPA: one for the investigation-related
provisions, such as § 1512(b)(3) and (a)(1)(C), and one for
the “official proceeding” provisions, such as § 1512(b)(1) and
(b)(2). See 

(observing that the link
to a federal proceeding in the investigation-related provisions
is less stringent than the “official proceeding” requirement in
§ 1512(b)(1) and (2)). Hence, we hold that a successful
prosecution under § 1512(b)(1) requires proof, beyond a
reasonable doubt, that the defendant contemplated a
particular, foreseeable proceeding, and that the contemplated
proceeding constituted an “official proceeding,” as defined by
§ 1515(a)(1)(A).

                              B.




                              27
        Applying the above-stated principles, we conclude that
the Government’s evidence at trial was insufficient to satisfy
the “official proceeding” requirement in this case. It is clear
from the transcript of the telephone calls that Shavers’s and
White’s efforts were directed at preventing potential
witnesses of the speakeasy robbery from testifying at their
upcoming hearing in Pennsylvania state court. There is no
evidence that they contemplated any other proceeding. In the
telephone calls at issue, Shavers and White expressly referred
to specific upcoming state court hearings. In his prison phone
call on November 12, 2005, for instance, White discussed the
speakeasy robbery and who would show up at his upcoming
court date. The contemplated court date could only have been
a hearing in state court, as the federal prosecution was not
initiated until over a year later. On November 14, White
mentioned needing someone to show up for court the
following day for a “preliminary.” JA 2106. In that same
conversation, Shavers discussed that he would be going to
court the following day. On November 18, White stated that
they would be “back to court the 30th.” 

in
the November 30 conversation, Shavers told the person on the
other end of the line that they had gone to court and would go
back in three weeks on January 24. Likewise, in the January
9, 2006 conversation, Shavers mentioned that he would be
going to court for his “preliminary” on January 24. 

on September 2, White told the caller that “I
got trial on the 18th, I need you to handle somethin’ for
me[.]” 

of these conversations demonstrate
that Shavers and White had in contemplation specific
hearings in state court, not an “official proceeding” as defined
by § 1515(a)(1)(A), which, again, requires that the
contemplated proceeding be federal in nature. There was no




                              28
discussion of any other proceeding nor indication that
Shavers and White intended to prevent the witnesses from
testifying at a proceeding other than the state court one. 5

        The District Court held that, at the time of the alleged
witness tampering, there was “a sufficient basis for one to be
put on notice” of the potential for federal prosecution. 

there was evidence that Shavers and White
were aware that they were subject to a federal investigation
by November 18, 2005 at the latest. In connection with the
robbery of a post office on November 7, 2005, the FBI
initiated an investigation into the overall activities of the
group of people associated with Ebony Gist, including
Shavers and White. Two weeks after the robberies, postal
inspectors and the Philadelphia Police Department executed a
search warrant at Gist’s home. Postal inspectors also began
reviewing the prison telephone calls of Shavers and White.
The prison telephone call transcripts reveal that Shavers and
White learned on November 18, 2005 (at the latest) that
federal agents were investigating them in connection with the
post office robbery. 

Ford: “[T]hey got
the Feds, SWAT, ramming the houses up in there and all.”
Shavers: “I heard, man[.]”); 

Harris: “The
law ran into Eb’s spot last night.” White: “What? The Feds
the … boy.”). Notwithstanding that evidence, the appellants’
knowledge of the post office robbery investigation does not
support the Government’s case here because the attempts at

       5
         Shavers was convicted of violating § 1512(b)(1) for
telephone conversations occurring on November 14 and 18,
2005 and January 9, 2006. White was convicted of violating
§ 1512(b)(1) for telephone conversations occurring on
November 12 and 18, 2005, and September 2, 2006.




                              29
witness tampering were so obviously directed at specific state
court proceedings and not some other possible proceeding.

        Our discussion in United States v. Bell is instructive.

(3d Cir. 1997). In Bell, Roberta Ronique Bell
and several others were accused of murdering Doreen
Proctor, who was scheduled to testify against Bell’s
boyfriend, David Tyler, in his state trial on drug offenses. 

was charged with violating § 1512(a)(1)(A) and
(C) (relating to the murder of a witness), and § 1512(b)(1),
(2), and (3). Although our discussion of the § 1512(b)(1)
charge was limited, we specified that Ҥ 1512 clearly would
not apply if Bell’s sole motivation in killing Proctor was to
prevent her from testifying at Tyler’s trial, because that state-
court trial does not qualify as an ‘official proceeding.’” 

is undoubtedly the case here. Even though a
federal proceeding was arguably foreseeable in this case,
there was no nexus between the possible federal proceeding
and the appellants’ conduct.              Their conduct was
unequivocally in contemplation of a state court proceeding.

       The Government asserts that this case is similar to
United States v. Persico, in which the Court of Appeals for
the Second Circuit held that a federal criminal proceeding
was foreseeable where the defendant had been informed by
the Government that he was the target of a federal
investigation. 

, 108 (2d Cir. 2011). Persico is
distinguishable from the case at bar, however. In Persico,
there was no pending state criminal proceeding at the time the
defendant engaged in witness tampering. Thus, there was no
dispute that the particular proceeding contemplated by the
defendant was the imminent federal grand jury proceeding.
Here, Shavers and White were clearly contemplating their




                               30
upcoming hearings in Pennsylvania state court, and not any
federal proceeding, when they sought to tamper with potential
witnesses.

       For that reason, we hold that no rational trier of fact
could have found the essential elements of a § 1512(b)(1)
violation beyond a reasonable doubt. See United States v.
Shively, 

, 811–12 (5th Cir. 1991) (holding that
the Government had not produced evidence that the defendant
intended to influence an official proceeding because the
evidence showed only that he intended to influence the state
civil proceedings that he had brought against his insurance
agency). As such, we will vacate Shavers’s convictions on
Counts Five, Six, and Seven, and White’s convictions on
Counts Four, Six, and Eight.

             IV.    The Identification Evidence

       The appellants challenge the admission of a number of
eyewitness identifications on due process grounds, arguing
that they were the result of impermissibly suggestive
procedures and were unreliable. After a suppression hearing,
the District Court summarily held that the identification
procedures used by the police were not unduly suggestive and
the identifications were, therefore, admissible. We find no
basis for reversal with respect to the identification evidence.

                              A.

       We review the District Court’s ruling on the admission
of identification testimony for an abuse of discretion. United
States v. Brownlee, 

, 137 (3d Cir. 2006). In
reviewing the denial of a motion to suppress, we examine the




                              31
District Court’s factual findings for clear error and review its
legal determinations under a plenary standard. 

an out-of-court identification
procedure violated due process, we conduct a two-step
inquiry. First, we assess whether the police used an
identification procedure that was unnecessarily suggestive.
Perry v. New Hampshire, 

, 724 (2012). In
answering the question of whether a show-up identification
was impermissibly suggestive, “each case must be considered
on its own facts.” Neil v. Biggers, 

, 196 (1972)
(quotation marks omitted). Even where the police employed
an unnecessarily suggestive procedure, however, the
identification testimony is not automatically excluded. 

. Instead, as a second step, we engage in a
case-by-case analysis of whether the procedure gave rise to
such a “substantial likelihood of misidentification” that
admitting the identification would be a denial of due process.

identification evidence must be excluded. If, on
the other hand, “the indicia of reliability are strong enough to
outweigh the corrupting effect of the police-arranged
suggestive circumstances, the identification evidence
ordinarily will be admitted, and the jury will ultimately
determine its worth.” 

in Perry v. New
Hampshire, the United States Supreme Court directed that
courts should not reach the reliability inquiry unless the
identification resulted from a situation created by improper
police conduct. 

        White and Shavers first protest the admission of
identifications made by eyewitnesses Brian Anderson and




                              32
Alberto Vasquez at the scene of the robbery. They argue that
the out-of-court “show-up” witness identifications were
impermissibly suggestive because the witnesses made the
identifications while Shavers and White were handcuffed in
police vehicles at the scene of the robbery and bystanders
were commenting on the men in the vehicles. The appellants
maintain that the on-scene identifications were unnecessary
because the police could have just as easily conducted a
lineup at the police station, and that they were unreliable
because neither witness had an opportunity to observe all of
the perpetrators’ facial features during the robbery.

        We have recognized that a show-up identification
procedure of the sort employed here “is inherently suggestive
because, by its very nature, it suggests that the police think
they have caught the perpetrator of the crime.” 

; see also Stovall v. Denno, 

, 302
(1967), overruled on other grounds by Griffith v. Kentucky,

(1987) (“The practice of showing suspects
singly to persons for the purpose of identification, and not as
part of a line-up, has been widely condemned.”).
Nonetheless, show-up identifications may be necessary when
there is an “imperative” need for an immediate identification.

. For instance, exigency justified a
show-up identification without the presence of counsel in
Stovall v. Denno because a key witness was critically injured
in the hospital and a show-up identification was “the only
feasible procedure.” 

v. Brownlee, we held that show-up
identifications by a number of eyewitnesses in that case were
unduly 

. The police conducted
the identifications while the defendant, who was suspected of




                              33
car-jacking, was handcuffed in the police cruiser at the scene
where the stolen car had crashed. The entire scene gave the
impression that the police had apprehended the defendant in
the stolen car. Exacerbating the suggestiveness were the facts
that the defendant was the only suspect shown, the four
witnesses made identifications while exposed to each others’
influence, and there was no reason why the defendant could
not have been taken to the police station for a less suggestive
line-up or photo array. 

the show-up identifications in this
case were unnecessarily suggestive. Like in Brownlee, the
identifications took place while Shavers and White were
handcuffed in patrol cars at the scene of the crime and they
were the only suspects shown to the witnesses. Moreover, as
in Brownlee, there was a risk here that the witnesses
influenced each other. In particular, when the officers pulled
up to the robbery scene with the appellants in police vehicles,
the eyewitnesses waiting outside of the house approached the
patrol car and police van, started pointing at Shavers and
White and said “that’s the guys that just left out of there.” JA
556. Anderson testified that he pointed at the suspects to
identify them and he could hear the other witnesses
discussing and identifying the suspects. 

Government proffered no reason why the
appellants and witnesses were not taken to the police station
for a less suggestive line-up or photo array, or at least down
the street for a less suggestive show-up identification. We
acknowledge that some exigency existed here because, due to
witness reports that the perpetrators were carrying firearms, it
was vital to know immediately whether the correct people had
been apprehended. See Simmons v. United States, 

377, 384–85 (1968) (holding that a show-up identification
procedure was not unnecessarily suggestive because “[a]
serious felony had been committed[,] [t]he perpetrators were
still at large[,] [and it] was essential for the FBI agents swiftly
to determine whether they were on the right track . . . .”). It
was also important to conduct the identifications while the
witnesses’ memories were still fresh. See United States v.
Funches, 

, 254 (7th Cir. 1996) (“We have also
recognized that immediate show-ups can serve other
important interests.          For example, show-ups allow
identification before the suspect has altered his appearance
and while the witness’ memory is fresh, and permit the quick
release of innocent persons.” (quotation marks omitted));
United States v. Watson, 

, 6 (1st Cir. 1996) (holding
that a show-up identification was not impermissibly
suggestive where it took place immediately after the unlawful
conduct and was necessary to avoid arresting the wrong
person).      Despite the urgency at hand, however, the
suggestiveness of the identification procedure could have
been easily minimized if the officers had parked down the
street and brought each eyewitness separately to make an
identification.

       Although the identifications under these circumstances
were unnecessarily suggestive, their presentation to the jury
was still appropriate because the circumstances did not create
a substantial risk of misidentification. In making that
assessment, we take into account the totality of the
circumstances. 

. In Neil v. Biggers,
the Supreme Court set forth various factors that aid courts in
determining whether an identification was reliable despite a
suggestive procedure: (1) “the opportunity of the witness to
view the criminal at the time of the crime,” (2) “the witness’




                                35
degree of attention,” (3) “the accuracy of the witness’ prior
description of the criminal,” (4) “the level of certainty
demonstrated by the witness at the confrontation,” and (5)
“the length of time between the crime and the confrontation.”

Biggers, the Court held that a show-up
identification was reliable despite a suggestive procedure
because the victim spent a lot of time in close proximity with
her assailant, her description to police was “more than
ordinarily thorough,” she had “no doubt” that the defendant
was the assailant, and she had been presented with a number
of previous show-up identification inquiries without making
an identification. 

warrant the exclusion of
evidence, the Biggers factors must indicate a substantial risk
of misidentification.        The existence of “potential
unreliability” alone is not enough to compel exclusion of an
identification because there are “other safeguards built into
our adversary system” that minimize the risk that a jury will
place “undue weight on eyewitness testimony of questionable
reliability.” 

. Those safeguards
include cross-examination, the right to effective assistance of
counsel, eyewitness-specific jury instructions, the beyond a
reasonable doubt standard, and the state and federal rules of
evidence. 

Brownlee, we held that the eyewitness
identifications were reliable despite law enforcement’s use of
an impermissibly suggestive procedure. We noted that some
facts suggested a risk of misidentification:          (1) the
abbreviated duration of the car-jacking — only 30 seconds;
(2) the victim’s testimony that she was predominantly
focused on the weapon, not the perpetrator, during the car-
jacking; (3) the victim’s mistaken account to the police that
the perpetrator was a child wearing shorts, when he was




                              36
actually a 30 year-old wearing pants; and (4) the generality of
the witnesses’ descriptions of the perpetrator. 

. Despite those concerns, we concluded that the
identifications were properly admitted because the witnesses
were able to observe the perpetrator at close range, in broad
daylight, and for sufficient time; their testimony revealed a
substantial degree of attention during the crime; their
descriptions were fairly accurate; their degree of certainty
was absolute; and only 25 minutes had elapsed between the
crime and the eyewitness identifications. 

the facts undermining the reliability of the identifications —
“[t]he generality of the witnesses’ descriptions of the suspect,
the relatively short period of time they saw him, and the other
shortcomings pertaining to their identifications” — went
“more to the weight of the evidence than the reliability of
their identifications, and thus were issues for the jury.” 

drive our conclusion that
Vasquez’s and Anderson’s identifications did not present a
substantial risk of misidentification. With respect to the first
Biggers factor, Anderson and Vasquez both had the
opportunity, albeit brief, to view the appellants’ clothing and
faces. On the morning of November 8, 2005, Anderson
witnessed three armed gunmen wearing hooded sweatshirts
enter Jeanette’s residence and order everyone down on the
ground. Anderson testified about Shavers that he could see
“part of his face,” including his nose, mustache, and the top
of his forehead. JA 878. Of the other appellants, he testified:
“[T]he other one I could see his face. . . . The other one, he
had his hood like real loose. I could see his whole face.” 

he recognized the men in the police cars
“[b]ecause of their size and their faces. They still had the
black hoodies on.” 

        Similarly, Vasquez testified that the three perpetrators
wore hooded sweatshirts that did not show their faces and he
could see “only like their eyes and maybe their foreheads.”

he was able to identify the man with
the shotgun, Shavers, because he unzipped his hooded
sweatshirt. 

also testified that he was able
to see White’s face. 

asked to identify the
men in the police cars after the robbery, Vasquez recognized
them “based on the appearance of their faces and their clothes
that they were wearing . . . . They were similar, and facial
structures, they had the same faces that I had seen when they
took their hoods off, and they were wearing the same clothing
and hoodies at the time.” 

the witnesses were only able to view the
perpetrators for a short time and could only see parts of their
faces, they saw them at close range and were able to give an
accurate general description including what the perpetrators
looked like and what they were wearing. As we held in
Brownlee, the short amount of time in which the witnesses
were able to observe the perpetrators and the generality of
their descriptions were facts for the jury to consider rather
than ones that precluded admission of the 

. Shavers notes that Vasquez inaccurately testified
about his weight, stating that he weighed 150 pounds, when
200 pounds was more accurate. An inconsistency such as
this, however, is for the jury to consider when they decide
how to weigh an identification. See 

factor also supports the reliability
of the eyewitness identifications. The witnesses’ testimony
illustrates that they were paying close attention to the
perpetrators. For instance, they knew the kinds of firearms




                              38
the perpetrators carried: “Mr. Lewis had a black 9-millimeter
or .45 caliber” and “[t]he other gentleman . . . had a nickel-
plated pistol.” JA 969. The possibility that Anderson and
Vasquez were more focused on the firearms than on the
perpetrators’ faces was another question for the jury, not a
reason to surmise that there was a substantial risk of a
misidentification as a matter of law. See 

.

        The third Biggers factor has no bearing on this case
because Vasquez and Anderson gave no description of the
perpetrators prior to their on-the-scene identifications. The
fourth Biggers factor counsels that there was little risk of
misidentification here because, like the witnesses in
Brownlee, both Anderson and Vasquez testified that they
were certain that they had identified the correct men.
Furthermore, Vasquez and Anderson both repeatedly
corroborated their initial identifications. Later on the day of
the robbery, Vasquez recognized White at the prison. Two
years after the robbery, Anderson identified Shavers and
White when shown separate pictures. Four years after the
robbery, Anderson was placed in the same holding cell as
Lewis, Shavers, and White where he recognized all three as
involved in the robbery. And, at trial, Vasquez and Anderson
identified all three appellants.

       Finally, the police presented Vasquez and Anderson
with the suspects within minutes of the robbery. There is an
inherent reliability to an identification made immediately
following the witness’s confrontation with the suspect
because the perpetrator’s appearance is fresh in the witness’s
mind. We articulated that principle in United States v.
Gaines, when we held that an on-the-scene show-up




                              39
identification made immediately following a bank robbery
was justified by, inter alia, the inherent reliability of an
immediate identification. 

, 197 (3d Cir. 1971).
Similarly, in United States v. Hawkins, another robbery case,
the Court of Appeals for the Seventh Circuit held that a show-
up identification was reliable, in part, because it was
conducted within an hour of the crime. 

, 710
(7th Cir. 2007).

        Scrutiny of the Biggers factors as applied to the facts
of this case convinces us that the show-up identifications did
not present a substantial likelihood of misidentification.
Thus, we hold that the District Court properly permitted the
jury to hear testimony about the show-up identifications and
the related in-court identifications.

                              C.

        Lewis challenges identifications made by Vasquez and
Anderson as well. First, he objects to the admission of
Vasquez’s identification of him on June 25, 2008 in an eight-
person photo array. In viewing the photo array, Vasquez
initially stated that he could not decide whether the third
perpetrator was Lewis or the person in the fourth photo, a
filler. Nevertheless, he later identified Lewis in court at the
pretrial hearing and testified that he was 100% sure that the
third perpetrator was Lewis after he studied the pictures in the
photo array more closely. Lewis maintains that the photo
array and in-court identifications by Vasquez should have
been suppressed because they were unreliable.

       Vasquez’s position is unpersuasive. As discussed
above, the reliability prong of the due process analysis is only




                              40
reached if the court determines that law enforcement used an
impermissibly suggestive procedure. See 

(“[D]ue process concerns arise only when law
enforcement officers use an identification procedure that is
both suggestive and unnecessary.”). Because Lewis has
proffered no reason why the photo array was unnecessarily
suggestive, there is no basis for finding a due process
violation occurred here and we do not reach the reliability
inquiry.

                               D.

         Next, Lewis asserts that Anderson’s in-court
identification of him was the result of an impermissibly
suggestive encounter in which Anderson (who was
incarcerated) was placed in a United States Marshal’s Service
holding cell with the three appellants three months before
trial. 6 On the day the encounter took place, June 14, 2009, a
suppression hearing had been scheduled to occur. When the

       6
            White states in his brief that he joins Lewis’s
argument with respect to Anderson’s identification. Lewis’s
brief provides no argument on White’s behalf, however.
Assessing identification evidence is a predominantly fact-
based inquiry and White provides no factual support or
argument illustrating why Anderson’s identification of him
was admitted in violation of due process. White has,
therefore, inadequately presented the issue on appeal, See
Skretvedt v. E.I. DuPont DeNemours, 

, 202–03
(3d Cir. 2004) (“[A]n issue is waived unless a party raises it
in its opening brief, and for those purposes a passing
reference to an issue will not suffice to bring that issue before
this court.”).




                               41
hearing was cancelled, the Government decided to conduct a
preparatory session with Anderson instead and did not cancel
his order of transport from prison to federal court. For an
unknown reason, however, the order to transport the
appellants to the courthouse was not cancelled and Anderson
was inadvertently placed in a holding cell with them.
Anderson first recognized Lewis by his face and voice when
they were transported from the prison block in an elevator
together with two other prisoners (not Shavers and White).
When Anderson, Lewis, Shavers, and White were later placed
in a holding cell together, Anderson recognized all three
appellants as the perpetrators of the robbery. He then
identified them at the pretrial hearing and at trial. Lewis
moved to suppress Anderson’s in-court identification of him
on the grounds that Anderson had failed to identify Lewis
previously but then recognized him as involved in the robbery
after encountering him in the holding cell with the other
appellants.

        Due to the holding cell mishap, Anderson’s in-court
identification of Lewis is certainly suspect. In United States
v. Emanuele, we dealt with a somewhat analogous incident.

(3d Cir. 1995). In that case, two witnesses were
sitting outside of the courtroom during trial when they
observed the defendant walking down the corridor in
handcuffs with a Deputy United States Marshal on either side
of him. 

declared that the situation was
impermissibly suggestive. 

light of Emanuele,
the suggestive nature of the situation in this case is evident.
Two years after the robbery, Anderson could not identify
Lewis in a photo array. When Anderson saw Lewis in the
prison elevator while exiting the prison on a day he knew he
was going to testify about the speakeasy robbery, it was




                              42
natural for him to suspect that Lewis was the third person
involved in the robbery. That suspicion was likely confirmed
when he and Lewis were then placed in a holding cell with
Shavers and White, whom Anderson had already identified.
Placing Lewis in an elevator and then a holding cell with a
key witness could have and should have been avoided. It is
equivalent to allowing a witness to observe a defendant in
shackles outside the courtroom.

        The Government asserts that placing the four men
together was inadvertent. The lack of an improper motive is
immaterial, however, because the encounter was still the
result of improper conduct on the part of law enforcement.
See 

the confrontation was caused by
the government, albeit inadvertently . . . .”). Under Perry, the
police must take an active role in creating the suggestive
situation before the reliability inquiry is reached. That
prerequisite can be gleaned from the Court’s use of the active
verbs “arrange,” “employ,” “use,” and others throughout the
opinion. See 

(“[D]ue process
concerns arise only when law enforcement officers use an
identification procedure that is both suggestive and
unnecessary.”); 

Court adopted a judicial
screen for reliability as a course preferable to a per se rule
requiring exclusion of identification evidence whenever law
enforcement officers employ an improper procedure.”); 

linked the due process check . . . only to
improper police arrangement of the circumstances
surrounding an identification.”); 

risk of
police rigging was the very danger to which the Court
responded in Wade when it recognized a defendant’s right to
counsel at postindictment, police-organized identification
procedures.”); 

illustrate the improper




                              43
suggestion it was concerned about, the Court pointed to
police-designed lineups . . . .”). The Court also justified its
rule on the basis that the deterrence rationale justifying the
exclusion of an identification at trial “is inapposite in cases,
like Perry’s, in which the police engaged in no improper
conduct.” 

the Court explicitly
denied that it was creating a mens rea requirement for the
police conduct and maintained that “what triggers due process
concerns is police use of an unnecessarily suggestive
identification procedure, whether or not they intended the
arranged procedure to be suggestive.” 

Thus,
we do not interpret Perry as requiring that the improper police
conduct be intentionally aimed at creating a suggestive
situation.

       This case is distinguishable from Perry, in which the
witness had “spontaneously” walked to the window of her
apartment building and pointed to Perry “without any
inducement from the police.” 

the United
States Marshal actively placed the appellants and Anderson
together. Either the United States Marshal or the Bureau of
Prisons was responsible for ensuring that the three appellants
would not be housed with a critical witness. The failure of
either government entity to do so resulted in an impermissibly
suggestive situation.

        We arrive at the question of whether Anderson’s
identification of Lewis was bolstered by sufficient indicia of
reliability despite the unduly suggestive confrontation in the
holding cell. Anderson had only a short time to view the
perpetrators’ faces at the time of the robbery — maybe 20
seconds. Critically, Anderson testified that Lewis did not
have his face covered during the robbery. Anderson appears




                              44
to have been paying attention because he was able to report
accurately that Lewis was wearing a gray hooded sweatshirt
and carrying a black automatic handgun.

        The strength of Anderson’s identification falters upon
consideration of the third Biggers factor, the accuracy of his
prior description of the suspect. Anderson previously
described Lewis as a “black male, approximately 30, 6-feet-3,
approximately 225 pounds.” JA 563. His description of
Lewis at trial was somewhat different — a light-skinned male
with a beard. 

Anderson also told police
that he had seen the third perpetrator after the robbery on
Germantown Avenue, then later recanted, saying he was
mistaken. 

inconsistencies evident in
Anderson’s testimony call into question the reliability of his
identification of Lewis.

        The fourth Biggers factor also warns of a risk of
misidentification because four years passed between the
robbery and Anderson’s identification of Lewis in the holding
cell. In the meantime, Anderson failed to identify Lewis in a
photo array two years after the robbery. Emanuele is once
again 

. In Emanuele, like
here, the witnesses benefited from an unobstructed view of
the perpetrators during the bank robbery. The second prong
of the identification due process analysis, reliability, turned
on whether the witnesses had previously made an accurate
identification of the defendant and, therefore, had
independent grounds for making identifications at trial. 

the witnesses’ adequate opportunity to view
the perpetrators during the crime, the first witness’s failure to
identify the defendant in a photo array prior to the suggestive
encounter undermined the reliability of her in-court




                               45
identification and revealed a substantial risk of
misidentification. 

of the other
witness, however, was permissible because she had
previously identified the defendant in a photo array. 

to identify Lewis before seeing
him with the other appellants in the holding cell before trial
leads us to conclude that the risk of misidentification was
substantial. For that reason, Anderson’s identification of
Lewis should not have been admitted at trial.

        We conclude, nonetheless, that the admission of
Anderson’s identification was harmless error. Under the
harmless error test for constitutional violations articulated in
Chapman v. California, the Government must prove “beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” 

, 24 (1967).
“[T]he relevant question under Chapman is not whether, in a
trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the
error.” Virgin Islands v. Martinez, 

, 337 (3d Cir.
2010) (quotation marks omitted). In deciding whether to
exercise the Court’s discretion to consider an error to be
harmless, “the controlling considerations are the length and
complexity of the record, whether the harmlessness of the
error or errors found is certain or debatable, and whether a
reversal will result in protracted, costly, and ultimately futile
proceedings in the district court.”           United States v.
McLaughlin, 

, 135 (3d Cir. 1997) (quotation
marks omitted), abrogated on other grounds by United States
v. Fiorelli, 

(3d Cir. 1998).




                               46
       In light of the overwhelming evidence against Lewis in
this case, we conclude that the error was harmless and does
not compel reversal. Another eyewitness, Vasquez, was
absolutely certain about his identification of Lewis as the
third robber. Furthermore, Sheronda Gaskin testified that
Lewis was with Shavers and White at Ebony Gist’s house the
night before the robbery when a fourth man told them of a
house in Jeanette’s neighborhood that had a lot of money. JA
1430, 1441. Gaskin observed the three appellants “get
prepared to rob the house” by donning hooded sweatshirts
and masks, and “loading up their guns.” 

following morning, Lewis arrived at Gist’s home with bruises
and “was telling everybody how he got away.” 

explained to Gaskin that “they had tried to rob the house”
and that “he went out through the back.” 

a
telephone conversation on November 18, 2005, White warned
Lewis that the authorities were searching for him and to
“keep a low profile.” 

in the conversation,
Lewis and Shavers discussed how Lewis had escaped after
the robbery. 

are convinced that there was
ample evidence in the record of Lewis’s culpability such that
the erroneous admission of Anderson’s identification of
Lewis was harmless error beyond a reasonable doubt.

                              E.

        Finally, White appeals the denial of his motion to
suppress Rickey’s identification of him at the police station,
in a lineup, and in court on the basis that Rickey did not have
sufficient opportunity to see White’s face at the speakeasy.
White’s challenge to Rickey’s identification is unsuccessful
because he does not explain why any of the procedures used
by law enforcement were unnecessarily suggestive. In




                              47
addition, Rickey’s identification at the police station is
unchallengeable under Perry because he identified White on
his own accord, without prompting by the police. See 132 S.
Ct. at 728. For these reasons, the District Court did not abuse
its discretion in admitting Rickey’s identifications of White.

           V.     Prison Telephone Conversations

        Lewis challenges the District Court’s denial of his
pretrial motion to suppress a telephone conversation recorded
at the prison on November 15, 2005 between Lewis, who was
not imprisoned at the time, White, and others. Lewis argues
that recording the call violated his Fourth Amendment right to
be free of unreasonable searches because he was unaware that
the call would be recorded and, thus, he had a reasonable
expectation of privacy in the call.

        We review the District Court’s decision to admit
evidence for an abuse of discretion. United States v. Serafini,

, 768 n.14 (3d Cir. 2000). The Fourth
Amendment protects the “right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
Fourth Amendment protections are not triggered unless the
state monitors an area in which the defendant has a
“constitutionally protected reasonable expectation of
privacy.” New York v. Class, 

, 112 (1986).
Determining whether an individual’s expectation of privacy is
justifiable under the Fourth Amendment involves two
inquiries: “(1) whether the individual demonstrated an actual
or subjective expectation of privacy in the subject of the
search or seizure; and (2) whether this expectation of privacy
is objectively justifiable under the circumstances.” Free




                              48
Speech Coal., Inc. v. Att’y Gen., 

, 543 (3d Cir.
2012).

        Under the specific circumstances presented in this
case, Lewis did not have an objectively reasonable
expectation of privacy in his telephone conversation with
White. Lewis knew where White was incarcerated when
White called Lewis, as he had agreed to send Shavers and
White mail there. Furthermore, Lewis was previously
incarcerated at the same prison. Thus, he would have
received a handbook alerting him that all telephone calls were
recorded and been exposed to a document hanging in the
common areas that notified prisoners that their calls might be
monitored and recorded. In these circumstances, Lewis
should have known that all outgoing prisoner telephone calls
were monitored and recorded. See United States v. Sababu,

, 1329 (7th Cir. 1989) (holding that a non-
prisoner had no reasonable expectation of privacy when
speaking to a prisoner on the telephone because, as a frequent
visitor to the prison, she was “well aware of the strict security
measures in place” and that the Code of Federal Regulations
puts the public on notice that prison officials are authorized to
monitor prisoners’ telephone calls); United States v. Harrison,

, 281–82 (M.D. Pa. 1997) (observing that the
defendant had no subjective expectation of privacy because it
was clear from the content of the telephone calls and his
guarded language that he knew he was speaking with a
prisoner and that the calls would be monitored). We hold,
therefore, that Lewis’s Fourth Amendment challenge to the
admission of the telephone call transcript is unavailing. 7

       7
          The Government devotes much of its brief to
arguing that the recording of Lewis’s conversation was not a




                               49
          VI.    The Post Office Robbery Evidence

       All three appellants assert that the District Court erred
in permitting the Government to introduce evidence that they
were involved in the uncharged armed robbery of a post
office. Although the Government had originally moved to
admit more details about the post office robbery investigation,
the evidence elicited at trial was essentially limited to the
following facts. Approximately twelve hours prior to the
speakeasy robbery, at 6:30 p.m. on November 7, 2005, a post
office was robbed in West Philadelphia. Postal Inspector
Kathleen Brady testified that on November 17, 2005, postal
inspectors executed a search warrant of Gist’s house based on
information that the post office robbery had been committed
by people staying there. Investigators also began inquiries


violation of Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, which prohibits the interception of “any
wire, oral, or electronic communication,” including telephone
conversations. 18 U.S.C. § 2511(1). We need not delve into
that topic, however, because Lewis does not claim a violation
of that Act.

        White also states in his brief, without argument, that he
joins Lewis’s challenge to the prison telephone call. White’s
challenge is unconvincing, however, as he engaged in other
calls from the prison prior to the November 15 call during
which he was specifically warned that prison telephone calls
might be monitored and recorded. JA 2114. For the reasons
stated above, prisoners do not have a reasonable expectation
of privacy when speaking on a prison telephone, especially
where a warning has been given.




                               50
into the people who spent time at Gist’s house, including
Lewis, Shavers, and White. The search produced a cellular
phone belonging to a customer from the speakeasy. Postal
inspectors also subpoenaed Shavers’s and White’s recorded
prison telephone calls and visitor logs in connection with the
investigation. 8 The Government also offered Gist’s testimony
that, on the night of the post office robbery, four individuals
ran into her house and hid in her back room from a helicopter
that was scanning the area. The next morning, four men,
including Lewis, were in her house and one of the men (not
Lewis) was counting money. Gist testified that a neighbor
stopped by later and told “Snoop” (Kenneth Ford) that he was
a suspect in the post office robbery.

        We review the District Court’s decision to admit
evidence for abuse of discretion, meaning that “we must
uphold the District Court unless its ruling was arbitrary or
irrational.” United States v. Green, 

, 239, 251–
52 (3d Cir. 2010) (quotation marks omitted). Federal Rule of
Evidence 404(b) limits the admission of evidence of other
crimes, wrongs, or acts “to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.” Such evidence “may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” 

a court must make before admitting similar acts

       8
          White claims that the transcripts of prison telephone
calls that were admitted into evidence in this case implicated
the three appellants in the post office robbery. There is no
mention of the post office robbery in those transcripts,
however.




                              51
evidence under Rule 404(b) is whether that evidence is
probative of a material issue other than character.”
Huddleston v. United States, 

, 686 (1988). We
have long considered Rule 404(b) to be inclusionary such that
“evidence of other wrongful acts was admissible so long as it
was not introduced solely to prove criminal propensity.”

.

       For similar act evidence to come in under Rule 404(b),
there must be “(1) a proper evidentiary purpose; (2) relevance
under Rule 402; (3) a weighing of the probative value of the
evidence against its prejudicial effect under Rule 403; and (4)
a limiting instruction concerning the purpose for which the
evidence may be used.” United States v. Butch, 

, 175 (3d Cir. 2001). Evidence is relevant if “(a) it has
any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed. R. Evid. 401.
Pursuant to Federal Rule of Evidence 403, we must also
consider whether the probative value of the evidence is
“substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”

       Applying this framework, we conclude that the District
Court did not abuse its discretion in allowing in the limited
evidence concerning the post office robbery. First, evidence
of the ongoing investigation into the post office robbery was
relevant and was offered for proper evidentiary purposes.
Inspector Brady’s testimony about the post office robbery
investigation was critical to the witness tampering allegations
because the Government was attempting to prove that
Shavers and White were being investigated by federal




                              52
authorities and that a federal criminal proceeding was
foreseeable. 9 Under Rule 404(b), it is permissible to admit
evidence that shows the defendant’s knowledge of a key fact.
Inspector Brady’s testimony was also necessary to admit
another critical piece of evidence against Lewis — the
presence of both Lewis and a speakeasy customer’s cell
phone at Gist’s residence the day after the speakeasy robbery.
Finally, the evidence explained the references to a federal
investigation in the prison telephone calls and why Shavers,
White, and Lewis were being investigated. Providing
background information of that sort is a proper evidentiary
purpose. See 

(“Here, evidence of
Green’s threat was admissible as background information
which completed the story of the crime. It explained why
Green was under investigation, why Stahl agreed to serve as
an informant, and the references to A.G. in their
conversations.”).

        Second, to the extent that the jury could have gleaned
any inference that the appellants were involved in the post
office robbery due to their association with Gist, we agree
with the District Court that the probative value of the disputed
evidence was not “substantially outweighed by the danger of .
. . unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. The evidence did
not speak to the appellants’ character because there was no
proof that the appellants had committed the post office

       9
          The fact that we ultimately hold that the Government
did not meet its burden on the witness tampering count does
not change our view that the admission of this evidence at
trial had a proper purpose.




                              53
robbery. Proof that they were being investigated alone is
substantially less prejudicial than evidence of the commission
of a crime. The possible prejudicial effect of the post office
robbery evidence, therefore, did not substantially outweigh its
probative value. See United States v. Jones, 

,
365 (3d Cir. 2009) (holding that evidence of violent crimes
and other illegal activities of defendant’s gang was not unduly
prejudicial because defendant “was not directly implicated”
and the evidence was probative of elements of the crimes that
the defendant was charged with).

       The appellants claim that the disputed evidence here is
analogous to the erroneously admitted evidence in United
States v. Murray, 

(3d Cir. 1997). In that case,
we held that evidence that the defendant had committed an
uncharged murder should not have been presented to the jury
because it was extremely prejudicial and irrelevant. 

prejudicial nature of the evidence in this case,
where there is merely the possibility that the appellants or
their associates were involved in another crime, is far less
than in Murray, which involved evidence that the defendant
had actually committed another murder. Moreover, unlike
the evidence in Murray, the evidence in this case was relevant
and was offered for a proper evidentiary purpose.

        Finally, the District Court’s failure to give a limiting
instruction addressing this evidence was not reversible error
because there is no indication in the record that defense
counsel requested one.           See Ansell v. Green Acres
Contracting Co., Inc., 

, 526 (3d Cir. 2003)
(holding that the defendant had waived any challenge to the
district court’s failure to give a limiting instruction addressing
Rule 404(b) evidence by failing to request one at trial or raise




                               54
the issue on appeal); United States v. Multi-Mgmt., Inc., 

, 1364 (9th Cir. 1984) (“It is well-settled that where
no limiting instruction is requested concerning evidence of
other criminal acts, the failure of the trial court to give such
an instruction sua sponte is not reversible error.”). Even if
there had been such a request, however, the lack of a limiting
instruction would be harmless error, given the extent to which
the probative value of the disputed evidence outweighs its
negligible prejudicial effect. We will, therefore, affirm the
District Court’s admission of the post office robbery
evidence.

        VII.   Statement by Witness Sheronda Gaskin

       The three appellants next challenge the District Court’s
refusal to declare a mistrial after an outburst by Government
witness Sheronda Gaskin. On redirect, Gaskin declared:

       Having me testify right here, like I’m afraid for
       my life. By me saying what I said in this
       courtroom today, there’s no way possible I can
       stay in Philadelphia. Like that’s a known fact
       right there. That’s a given, like. For a fact, I
       know G Bucks [Shavers] is a killer.

JA 1514. After the outburst, the District Court excused the
jury for lunch. When they returned, the Court issued a
cautionary jury instruction, stating:

       I am directing, ladies and gentlemen, that you
       are to disregard the answer and the question
       posed to the witness prior to your recess. You
       are not to consider the response or the question




                              55
       in any form or way as it relates to any one of
       these three defendants. It has no relationship to
       anything that is charged in this superseding
       indictment in this case . . . . I further instruct
       you that no one can mention that testimony or
       that question during any portion or course of the
       deliberations in this case.

Court also reiterated in its jury
instruction at the end of the trial that the jury must disregard
evidence that had been stricken by the Court. 

moved for a mistrial, which the Court denied
because, although the “prejudice [was] significant,” it did not
deprive Shavers of the right to a fair trial in consideration of
the totality of the evidence. 

2040–41.

       We review the denial of a motion for a mistrial based
on the admission of allegedly prejudicial evidence for abuse
of discretion. United States v. Lore, 

, 207 (3d
Cir. 2005). We are concerned with whether the statement
was so prejudicial that the appellants were deprived of the
fundamental right to a fair trial. United States v. Xavier, 

, 1285 (3d Cir. 1993). Three factors guide our
analysis of Gaskin’s inappropriate outburst: “(1) whether
[the] remarks were pronounced and persistent, creating a
likelihood they would mislead and prejudice the jury; (2) the
strength of the other evidence; and (3) curative action taken
by the district court.” 

.

       In Lore, a prosecution for embezzlement, a witness
blurted out, “You have to ask [one of the defendants]. She
handled the checkbook.” 

held that a curative
instruction was sufficient because the statement was dwarfed




                              56
by the witness’s five days of testimony, and thus was not
pronounced or persistent, and there was strong evidence of
the defendant’s culpability. 

States v.
Riley, a witness twice mentioned that he had met the
defendant in a work release program, which impermissibly
informed the jury that the defendant had been convicted of a
previous crime. 

, 336 (3d Cir. 2010). We held
that the remarks were not pronounced or persistent because
they were two remarks in the course of three days of
testimony in a five-week trial. 

significant evidence of guilt such that “there [was] no
question that the jury did not solely rely upon the fact that
[defendant] was on work release.” 

the
Court gave a curative instruction in the jury instructions at the
end of the trial. 

the remarks and the other Lore factors
drive the analysis, rather than the number of prejudicial
remarks. We have declared a mistrial on the basis of solitary
prejudicial remarks.      In United States v. Carney, the
defendant’s coconspirator, John Blandford, testified that the
defendant, who was on trial for a fraud-related conspiracy,
had “tried to kill myself and my two children.” 

,
466 (3d Cir. 1972). The District Court ordered the testimony
stricken and instructed the jury not to consider the question or
answer. We vacated the conviction, holding that the only
remedy was a mistrial because the prejudice was “obvious”
and Blandford’s testimony was essential to the Government’s
case.     

factors relevant to our
determination were the lack of overwhelming evidence of
guilt, the statement’s lack of impeachment value or relevance,
the fact that the prosecutor elicited the testimony by asking an




                               57
“obviously risky question” on direct examination, and the
defendant’s prompt motion for a mistrial. 

United States v. Gray, the defendant, who was
charged with bank robbery, testified and volunteered that he
had previously been “locked up waiting trial on my wife’s
death” and that his “wife was killed.” 

, 258 (3d
Cir. 1972) (en banc). In response, the prosecutor asked: “You
killed her, didn’t you?” 

District Court
sustained the defense’s objection to the question and
instructed the jury to ignore the testimony and strike it from
their minds. 

a mistrial should have been
granted because the prosecutor’s question was “grievous plain
error” and “[n]o cautionary instruction could purge the jury’s
mind and memory of the devastating impact of the question.”

inappropriate, does not
rise to the level that would compel a mistrial. Her statement,
a single, isolated comment in the course of a six-day trial, was
not as “pronounced and persistent” as the remarks in Carney
and Gray. The statements in Carney and Gray were much
more specific than in this case because they identified specific
incidents and victims. Additionally, Gaskin’s testimony had
already been undermined because she admitted to having
committed perjury before the grand jury. Thus, the first Lore
factor does not persuade us that a mistrial was appropriate.

      The second Lore factor also counsels against declaring
a mistrial. There was considerable evidence of Shavers’s
culpability including, inter alia, his arrest within minutes and
blocks of the robbery, which took place at 5:30 a.m., an
unusual hour to be running down the street; Vasquez’s and




                              58
Anderson’s identifications of Shavers immediately following
the robbery and later in court; Shavers’s possession upon
arrest of shotgun shells combined with witnesses’ testimony
that one of the men at the robbery was carrying a shotgun;
Gaskin’s testimony that Shavers and White were discussing a
house with lots of money the night before the robbery and
then left Gist’s house shortly before the robbery armed with
firearms; and the prison telephone calls in which Shavers
discussed being present at Jeanette’s during the robbery. The
substantial evidence of Shavers’s guilt in this case far
overshadows Gaskin’s comment.

        With respect to the third Lore factor, the District Court
gave a strong curative instruction following Gaskin’s
comment and then another in the final instructions. “A jury is
ordinarily assumed to follow clear instructions from the trial
judge.” 

. While we acknowledge the
prejudicial nature of Gaskin’s outburst, given the evidence in
the case and the curative instructions, we are confident that
the statement was not so prejudicial as to deprive Shavers of a
fair trial. The District Court did not abuse its discretion in
denying Shavers’s motion for a mistrial. 10

               VIII. The Confrontation Clause

       White maintains that the District Court violated his
right to confrontation by admitting Gist’s testimony about a

       10
          White and Lewis both join this claim for relief but
do not explain how Gaskin’s statement was prejudicial with
respect to them. Nonetheless, we are satisfied that any
minimal prejudice that Gaskin’s statement had on White or
Lewis was easily cured by the Court’s two instructions.




                               59
statement that Lewis made to her that implicated White and
Shavers in the robbery. Gist testified that Lewis and others
used to spend time at her home. On the morning of the
speakeasy robbery, she came downstairs and found Lewis and
three other men in her home. One of the men, not Lewis, was
counting money. Lewis related to Gist that he had injured his
forehead while hiding under a children’s pool the night
before. When asked whether Lewis divulged what he had
been doing that night, Gist testified that Lewis “didn’t say
exactly what he was doing, but he just stated that F [referring
to White] and Butts [referring to Shavers] had got locked up.
They had got caught trying to rob, I think a speakeasy or
something.” JA 1308. White argues that Gist’s testimony
about Lewis’s statement violated his right to confrontation
under the Sixth Amendment.

       Because the appellants did not raise a Confrontation
Clause objection to this evidence in the District Court, it is
reviewed for plain error. United States v. Richards, 

, 341–42 (3d Cir. 2001). To satisfy the plain error
standard, the defendant must prove that there was (1) an error;
(2) that is plain, i.e., obvious under the law at the time of
review; and (3) that “affect[s] substantial rights.” Johnson v.
United States, 

, 467–68 (1997). If those
conditions are met, we may exercise our discretion to order
correction, but only if the error “seriously affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.” 

error is considered to have
affected substantial rights when it “‘affected the outcome of
the district court proceedings.’” United States v. Vazquez-
Lebron, 

, 446 (3d Cir. 2009) (quoting United
States v. Olano, 

, 734 (1993)).




                              60
       The Confrontation Clause of the Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. In the wake of the Supreme
Court’s decisions in Crawford v. Washington, 

(2004) and Davis v. Washington, 

(2006), we
have held that a witness’s statement implicates the
Confrontation Clause only if it is testimonial. United States
v. Berrios, 

, 126 (3d Cir. 2012). Under Bruton
v. United States, using a non-testifying codefendant’s
confession violates a defendant’s rights under the
Confrontation Clause.         

, 127–28 (1968).
Critically, we have asserted that, “because Bruton is no more
than a by-product of the Confrontation Clause, the Court’s
holdings in Davis and Crawford likewise limit Bruton to
testimonial statements.” 

.

       In view of our holding in Berrios, we conclude that
Gist’s testimony did not contravene White’s Confrontation
Clause rights. In Berrios, we considered a conversation
between Reinaldo Berrios and one of his codefendants, Troy
Moore, that was recorded as part of an unrelated
investigation. 

conversation incriminated
Berrios, Moore, and a third codefendant, who challenged
admission of the recorded conversation on Confrontation
Clause grounds. 

held that the recorded
statements bore “none of the characteristics exhibited by
testimonial statements” because there was no evidence that
Berrios and Moore intended to incriminate their
codefendants, that they were aware that their conversation
was being recorded, or that “their conversation consisted of
anything but ‘casual remark[s] to an acquaintance.’” 

). The attributes of a




                               61
testimonial statement are lacking here as well. There is no
indication or argument that Lewis intended to incriminate
Shavers and White or anticipated that Gist would be called to
testify against them. Nor is there any suggestion that the
conversation amounted to more than simply a “casual remark
to an acquaintance.” 

elicitation of
Lewis’s remarks bears no resemblance to the abusive
governmental investigation tactics that the Sixth Amendment
seeks to prevent. 11 Thus, we are satisfied that the admission
of Lewis’s statements does not compel reversal of the
appellants’ convictions.

IX.    The Mandatory Minimum Sentences Under 18 U.S.C.
                         § 924

        We turn to the argument, joined by all three appellants,
that the District Court’s imposition of the seven-year
mandatory minimum sentence pursuant to 18 U.S.C.
§ 924(c)(1)(A)(ii) was unconstitutional without a finding by
the jury that the appellants brandished firearms during the
robbery. While the appellants acknowledge that Supreme
Court precedent forecloses relief on this claim, they raise the
issue to preserve it for future review.

       We exercise plenary review over allegations of
constitutional violations in sentencing. United States v.
Lennon, 

, 538 (3d Cir. 2004). The appellants
were convicted under 18 U.S.C. § 924(c)(1)(A), which

       11
           Shavers originally made this argument as well but
has since submitted a letter to the Court pursuant to Federal
Rule of Appellate Procedure 28(j) stating that he no longer
seeks relief on this ground in light of our decision in Berrios.




                              62
imposes a mandatory minimum sentence of seven years in
addition to the punishment for the underlying crime on a
perpetrator who brandishes a firearm “during and in relation
to” any federal crime of violence. The verdict form tasked
the jury with deciding whether the appellants had used or
carried firearms during and in relation to the robbery. The
jury found in the affirmative. At sentencing, the District
Court found by a preponderance of the evidence that the
appellants had not only carried, but brandished firearms
during the robbery. Accordingly, the Court included the
seven-year     mandatory     minimum       set    forth    in
§ 924(c)(1)(A)(ii) in the appellants’ sentences.          The
appellants argue that the seven-year minimum sentence
cannot be constitutionally imposed without a finding by the
jury beyond a reasonable doubt that they brandished firearms,
and that the lower burden of proof applied by the District
Court violated their right to due process under the Fifth
Amendment and their right to a jury under the Sixth
Amendment.

       In support of their argument, the appellants rely on
Apprendi v. New Jersey, in which the Supreme Court held
that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 

, 490 (2000). The
Supreme Court has held, however, that “brandishing” a
firearm is a sentencing factor and not an element of the crime
described in 18 U.S.C. § 924(c)(1)(A). Allowing the judge to
find that factor by a preponderance of the evidence does not
violate a defendant’s Fifth and Sixth Amendment rights.
Harris v. United States, 

, 556 (2002). The
Supreme Court in Harris v. United States explained that the




                              63
“brandishing” provision does not violate the Apprendi rule
because the mandatory minimum provisions in § 924 do not
extend a defendant’s sentence beyond the statutory maximum
sentence, which is “well in excess of seven years.” 

see also United States v. Shabazz, 

,
288–89 (3d Cir. 2009).

       Harris remains good law and has been subsequently
relied upon and cited by the Supreme Court and this Court.
See, e.g., United States v. O’Brien, 

, 2179–80
(2010); United States v. Tidwell, 

, 245 (3d Cir.
2008). 12 Given that the Supreme Court squarely addressed

       12
           Shavers argues that the Supreme Court’s opinion in
Cunningham v. California, undermines its reliance in Harris
on the traditional role of the sentencing court in fact-finding.

, 289, 293 (2007). In Cunningham, the Court
reversed the California Supreme Court’s holding that
California’s determinate sentencing law did not contravene
the Sixth Amendment. The Court rejected the California
court’s pronouncement that the law “simply authorize[s] a
sentencing court to engage in the type of factfinding that
traditionally has been incident to the judge’s selection of an
appropriate sentence within a statutorily prescribed
sentencing range.” 

is distinguishable
from Harris, however, because the California statute provided
three levels of fixed sentence terms at six, twelve, and sixteen
years of imprisonment. 

California statute
violated Apprendi because it allowed the court, by finding
additional facts by a preponderance of the evidence, to
enhance a sentence into a tier higher than that justified by the
jury’s finding. To the contrary, the sentencing enhancements
in § 924 do not dictate a sentence above the maximum




                              64
this issue in Harris and held that brandishing is a sentencing
factor to be found by the judge, the appellants’ argument does
not provide a basis for reversal.

        X.     Shavers’s Term of Supervised Release

        Finally, Shavers contends that his eight-year term of
supervised release exceeds the statutory maximum of five
years for a violation of 18 U.S.C. § 924(c)(1)(A)(ii). For a
felony conviction pursuant to § 924(c), which is a Class A
felony, the maximum length of supervised release is five
years. 18 U.S.C. §§ 3559(a)(1), 3583(b)(1); United States v.
Cudjoe, 

, 1166 (10th Cir. 2011); United States
v. Todd, 

, 895 (8th Cir. 2008). Shavers is
correct, therefore, that his sentence of eight years of
supervised release exceeds the statutory maximum term of
supervised release for the offense of conviction. Because that
constitutes plain error, we will vacate Shavers’s sentence and
remand to the District Court for resentencing. See United
States v. Cole, 

, 118 (3d Cir. 2009) (“Our
precedent is clear that a plainly erroneous condition of
supervised release always affects a defendant’s substantial
rights.”). 13




sentence for the offense as found by the jury. The Court dealt
with a different statutory structure in Cunningham and,
therefore, that case does not provide support for overruling
Harris.
        13
           Although Lewis joins this argument, his term of
supervised release was five years and he has no basis for this
claim.




                             65
                             XI.

       In accordance with the foregoing, we will vacate
Shavers’s eight-year term of supervised release and Shavers’s
and White’s witness tampering convictions. We will uphold
the convictions of all three appellants on all other counts and
affirm Lewis’s sentence.         We will remand for the
resentencing of Shavers and White in accordance with this
opinion.




                              66