United States v. Kenneth Strickland

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 25-1435

UNITED STATES OF AMERICA

v.

KENNETH STRICKLAND, a/k/a Knowledge,

Appellant

Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2:21-cr-00311-001)
District Judge: Honorable Brian R. Martinotti

Argued on March 26, 2026
Before: HARDIMAN, SCIRICA

, and AMBRO, Circuit
Judges


The Honorable Anthony J. Scirica was unavailable to
participate in the decision in this case after submission to the
merits panel. The opinion in this matter was filed by a

2

(Opinion filed August 18, 2026)
Jason F. Orlando (Argued)
Murphy Orlando
494 Broad Street
5th Floor
Newark, NJ 07102
Counsel for Appellant

Mark E. Coyne
John F. Romano (Argued)
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge
After a jury trial, Kenneth Strickland appeals his
convictions for drug conspiracy and distribution. He raises
four issues, including whether the District Court erred by
declining to instruct the jury that the Government must prove
chain of custody beyond a reasonable doubt. We affirm
Strickland’s convictions, though in doing so we part from the

quorum of the panel pursuant to 28 U.S.C. § 46(d) and 3d Cir.
I.O.P. 12.1(b).

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current Third Circuit Model Criminal Jury Instruction on chain
of custody.
I. BACKGROUND
In January 2024, a grand jury indicted Kenneth
Strickland on six counts—one count of conspiracy to distribute
and possess intending to distribute fentanyl and heroin, and
five counts of fentanyl distribution and possession with intent
to distribute, all in violation of 21 U.S.C. § 841(a)(1). The five
counts of fentanyl distribution were based on five undercover
transactions between November 2019 and May 2020. Trial
took place in July 2024.
During the trial, the jury heard from Detective John
Cooney, who made the undercover purchases. He testified that
he bought drugs from a man named “Knowledge,” whom he
identified as Strickland. The Government’s evidence also
included surveillance video and testimony from officers who
conducted surveillance, a co-conspirator who testified he sold
drugs to “Knowledge” on consignment (delaying payment
until Knowledge sold the drugs to customers of his own),
testimony and reports from forensic chemists, cell-site location
data, wiretap recordings and text messages, and recorded
phone calls and emails between an incarcerated co-conspirator
and the suspect. The Government introduced several bags of
drugs as physical evidence.
Strickland advanced a defense theory of mistaken
identity, questioning Detective Cooney’s identification of him
and presenting an expert on the unreliability of eyewitness
identifications. He also cross-examined witnesses on chain of
custody and objected to the introduction of certain drug
evidence on chain-of-custody grounds. Strickland returned to
these themes in summation.

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At the close of trial, Strickland requested a jury
instruction on chain of custody based on the Third Circuit
Model Criminal Jury Instructions (“Model Instructions”). In
its entirety, the Model Instruction on chain of custody reads as
follows:
The defense has raised the issue of defects in the
chain of custody of (describe evidence in
question; e.g., the firearm, the drugs). You may
consider any defects in determining the
authenticity of this evidence and what weight to
give it. The government must prove beyond a
reasonable doubt that the (describe evidence in
question) (is)(are) the same as the (describe
evidence) (alleged in the indictment)(introduced
during the trial).
3d Cir. Model Crim. Jury Instruction 4.12. The Government
requested that the scope of the instruction be limited to certain
exhibits. Defense counsel expressed concern that such a
limitation might imply the beyond-a-reasonable-doubt burden
applied only to those exhibits and not others. The Government
suggested omitting the last sentence altogether; defense
counsel opposed that suggestion.
Ultimately, the District Court agreed with defense
counsel regarding scope but removed the last sentence of the
instruction as the Government had requested. Defense counsel
proposed a modified version of that sentence, but the Court
rejected it, reasoning that the instructions were already “replete
with [the] government’s burden” and that the deletion was “an
easier way” to resolve the dispute. App. 2952. Defense
counsel unsuccessfully protested that the instructions
conveyed the Government’s burden “as to the elements but not
to the chain of custody.” Id.

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The jury returned verdicts of guilty on all counts, and
the District Court sentenced Strickland to 132 months of
incarceration. He now appeals his convictions.
II. ANALYSIS
On appeal, Strickland contends the District Court
should have (1) instructed the jury according to the final
sentence of Model Instruction 4.12, (2) permitted additional
testimony from the expert witness on eyewitness identification,
(3) admitted the recordings of prison calls on an individual
basis rather than in bulk, and, (4) as to the conspiracy offense,
granted his motion for a judgment of acquittal under Federal
Rule of Criminal Procedure 29.
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291. For the
following reasons, we affirm the judgment of conviction.
II.A. Burden of Proof for Chain of Custody
First, Strickland contends the District Court should have
instructed the jury according to the final sentence of Model
Instruction 4.12, which, as noted, requires the Government to
“prove beyond a reasonable doubt” that the drugs displayed at
trial were in fact the drugs from the undercover purchases.
We note at the outset that the Model Instructions do not
bind courts. United States v. Maury, 695 F.3d 227, 259 (3d
Cir. 2012). The parties do not dispute that the instruction
actually given by the District Court was legally accurate; we
review for abuse of discretion its refusal to give additional
instructions. United States v. Jimenez, 513 F.3d 62, 74 (3d Cir.
2008). We reverse “only if the omitted instruction is correct,
is not substantially covered by other instructions, and is so
important that its omission prejudiced the defendant.” United

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States v. Piekarsky, 687 F.3d 134, 142 (3d Cir. 2012) (quoting
United States v. Urban, 404 F.3d 754, 779 (3d Cir. 2005)). As
a matter of first impression, we hold that the omitted
instruction is incorrect.
1, 2

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Strickland contends the Government forfeited any challenge
to the legal accuracy of the Model Instructions. He points out
that it argued only that the instruction was duplicative and
confusing during the charge conference and that it did not
object during closing statements when defense counsel said the
chain of custody must be established beyond a reasonable
doubt. But the Government is not the appellant in this case.
“We may affirm an order of the district court on any ground
supported by the record.” United States v. Jenkins, 333 F.3d
151, 153 (3d Cir. 2003) (citing In re Columbia Gas Sys. Inc.,
50 F.3d 233, 237 n.6 (3d Cir. 1995)). What’s more, we have
“discretion to consider pure questions of law [that] are closely
related to arguments that the parties did raise and for which no
additional fact-finding is necessary.” Ingram v. Experian Info.
Sols., Inc., 83 F.4th 231, 240 n.5 (3d Cir. 2023) (citation
modified). Further, our review for abuse of discretion—which
does not apply until the appellate stage—asks specifically
whether “the omitted instruction is correct.” Piekarsky, 687
F.3d at 142 (quoting Urban, 404 F.3d at 779). Strickland’s
position would preclude the Government from addressing a
key component of the appellate standard because it won on
another ground at the District Court. We reject that
incongruity.

2
Strickland contends we have previously considered this issue
in United States v. Clark, 425 F.2d 827 (3d Cir. 1970), where
we approved the following jury charge:

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Model Instruction 4.12 does not explain why it requires
the Government to prove chain of custody beyond a reasonable
doubt. Its commentary states only that because “[a] defect in
the chain of custody goes to the weight of the evidence, not its
admissibility[,] questions about the chain of custody might
cause the jury to acquit even though the evidence was properly
admitted.” 3d Cir. Model Crim. Jury Instruction 4.12 cmt
(citations omitted). It mentions “burden of proof” to say only
that “the defendant has no burden of proof” when the
Government challenges the authenticity of defense evidence,
“but the government may persuade the jury that the defendant’s
evidence has no probative value.” Id. The instruction and its
commentary have remained substantively unchanged since

[I]f you are not convinced beyond a reasonable
doubt that those bags on which the defendant’s
fingerprints were found are the bags that were
[recovered by police], then this defendant
should be acquitted.
Id. at 833. For two reasons, Clark does not govern here. First,
that case arose in the context of an evidentiary challenge to the
admission of the fingerprint identification; neither the jury
instruction nor the burden of proof was at issue. Second, our
footnote that “[t]he charge made clear that the jury had the
function of determining the facts” was not, as Strickland
argues, a holding that the jury must find the chain of custody
beyond a reasonable doubt. See id. at 833 & n.9. Instead, we
simply explained (1) the charge left the factual determination
to the jury, and (2) such a delegation was proper because the
evidence was properly admitted, so the defendant’s objections
went to “the weight of the evidence rather than to its
admissibility.” Id. at 833.

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their adoption in 2006. See 3d Cir. Model Crim. Jury
Instruction 4.12 (2006). But no model criminal jury instruction
in any other circuit contains similar language. And that is for
good reason.
We distinguish the “elements” of a crime from facts
“extraneous to the crime’s legal requirements.” Mathis v.
United States, 579 U.S. 500, 504 (2016). The Government
must prove beyond a reasonable doubt only the offense
elements. See id. “The measure of reasonable doubt need not
be applied to specific detailed facts, but only to the ultimate
issue.” Government of the Virgin Islands v. Greene, 708 F.2d
113, 115 (3d Cir. 1983); see also United States v. DiGilio, 538
F.2d 972, 988 (3d Cir. 1976) (holding competency need not be
proven beyond a reasonable doubt because it “is not an element
of the crimes [indicted]” and “the government is not, on every
subsidiary issue arising during the course of a criminal
proceeding, required to satisfy the beyond-a-reasonable-doubt
standard”).
Chain of custody is not an element of Strickland’s
offenses. Accordingly, there is no requirement that the
Government prove it beyond a reasonable doubt.
That is not to say that chain of custody is unimportant.
Here, Strickland’s defense at trial included criticism of the way
law enforcement handled the fruits of the undercover
purchases. He argued the Government could not prove that the
drugs presented at trial and authenticated as fentanyl were the
drugs purchased from him. If the jury credited that argument,
it might have created reasonable doubt as to whether the
substance Strickland distributed was, in fact, fentanyl.
But the chain of custody is not independently
significant. It derives its significance from its effect on the
Government’s ability to prove the elements of the offense. In
other words, the possibility that the chain of custody was

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compromised—and thus that the items purchased in the
undercover sales were swapped or contaminated—matters
only because it weakens the evidence that what Strickland
distributed was fentanyl, which is an element of the offenses
charged in this case.
In a different case, chain of custody might not play such
a central role. For example, we have upheld convictions on
firearms offenses even when the firearm is never recovered by
police. See, e.g., United States v. Lake, 150 F.3d 269, 270–71
(3d Cir. 1998). Such cases illustrate that chain of custody is
not the sole way to prove beyond a reasonable doubt the
identity of an object or the defendant’s possession of it.
Strickland’s arguments to the contrary are unavailing.
First, he observes that district courts have delivered this
instruction in its entirety and that the contested language
remained unchanged through revisions of the instruction.
Compare 3d Cir. Model Crim. Jury Instruction 4.12 (2006)
with 3d Cir. Model Crim. Jury Instruction 4.12.
True enough, and we do not arrive at our holding lightly.
However, the Model Instructions “are intended to be model,
not mandatory.” 3d Cir. Model Crim. Jury Instructions intro.
Although they are the result of thoughtful drafting, the
accuracy of a particular statement “cannot be assumed” merely
due to its presence in the Model Instructions. Id. That is
especially so here, where the Model Instructions do not explain
the basis for the statement’s inclusion.
Next, Strickland contends that rejecting this language
“would require a wholesale reworking of the Model Criminal
Jury Instructions because Instruction [] 4.12 is not the only
instruction that requires proving certain essential facts beyond
a reasonable doubt.” Reply Br. 6 n.2. He raises the example
of Model Instruction 3.08, which he characterizes as requiring
“that the Government prove beyond a reasonable doubt that the

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offenses charged were committed on a date reasonably near the
dates alleged.” Id.
Read in context, Model Instruction 3.08 does not mean
what Strickland argues. It informs the jury that “[t]he
Government does not have to prove with certainty the exact
date of the alleged offense. It is sufficient if the Government
proves beyond a reasonable doubt that the offense was
committed on a date reasonably near the date alleged.” 3d Cir.
Model Crim. Jury Instruction 3.08. The instruction does not
require the Government to prove timing beyond a reasonable
doubt; indeed, it relieves it of that burden. Of course, that the
offense occurred at all must be proven beyond a reasonable
doubt. The commentary further supports this reading by
explaining that the extent a variance in timing is “reasonable”
depends on whether it alters the elements of the offense
charged or prejudices the defendant. 3d Cir. Model Crim. Jury
Instruction 3.08 cmt. (citing United States v. Somers, 496 F.2d
723, 744 (3d Cir. 1974)). In any event, the possibility that other
portions of the Model Instructions might be inaccurate does not
control our analysis.
Because the final sentence of Model Instruction 4.12 is
not legally correct, the District Court did not abuse its
discretion by omitting it from the jury instructions.
II.B. Scope of Expert Testimony on Eyewitness
Identifications
Second, Strickland argues the District Court
erroneously excluded expert testimony about eyewitness
identifications based on a single encounter. That may be so,
but any error was harmless. See United States v. Valentin, 118
F.4th 579, 585–86 (3d Cir. 2024).
Federal Rule of Evidence 403 allows courts to “exclude
relevant evidence if its probative value is substantially

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outweighed by a danger of . . . unfair prejudice, confusing the
issues, [or] misleading the jury.” Invoking Rule 403, the
District Court excluded the defense expert’s testimony about
“eyewitness identifications based on a single encounter” and
“characteristics of particular encounters,” such as viewing
angle, duration, and stress. App. 61–62. It determined that
such issues “would be substantially more confusing and
prejudicial than probative, particularly given the numerous
encounters between the undercover officer and the Defendant,
as well as other corroborating identification evidence.” App.
61. It allowed the expert to testify “regarding issues applicable
to an eyewitness’s multiple identifications of an individual.”
App. 62.
Due to the fact-sensitivity of a district court’s
determination under Rule 403, we are reluctant to disturb it
“unless it was arbitrary or irrational.” United States v. Fallon,
61 F.4th 95, 109 (3d Cir. 2023) (quoting United States v.
Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010)). Here, it may
have been. The Court reasoned that testimony about single-
encounter identifications would be unhelpful because
Detective Cooney encountered the suspect numerous times.
But that misses the point of Strickland’s argument, which is
that the only time Detective Cooney was asked to identify the
suspect as Strickland—that is, to match the suspect with a
confirmed photo of Strickland—was after his first encounter.
Thereafter, he continued to meet with the suspect but was never
again asked to compare him against a pre-identified photo.
Accordingly, the only pre-trial identification was a single-
encounter identification.
3

3
Strickland also notes Detective Cooney did not pick him out
of a lineup in that single identification. Instead, he was shown
Strickland’s photo before his first encounter with the suspect,

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However, any error was harmless in light of the
“overwhelming corroborating evidence” regarding identity.
Valentin, 118 F.4th at 586. The Government presented a slew
of corroborating identification evidence at trial, including
recorded calls, testimony from other law enforcement officers,
co-conspirator testimony, the proximity of the transactions to
Strickland’s residence, cell-site location data, and surveillance
footage. Yet Strickland does not address any of this evidence
or even mention the issue of harmlessness in his briefing.
Because any error was harmless, we will not reverse on this
basis.
II.C. Admission of Recordings in Bulk
Third, Strickland challenges the District Court’s
admission of recorded prison calls in bulk rather than on a call-
by-call basis. “We review a district court’s decision to admit
evidence for abuse of discretion.” United States v. Johnson,
388 F.3d 96, 100 (3d Cir. 2004) (citing United States v. Brown,
254 F.3d 454, 458 (3d Cir. 2001)).
Federal Rule of Evidence 901(a) requires proffered
evidence to be authenticated with “evidence sufficient to
support a finding that the item is what the proponent claims it
is.” Here, the District Court admitted a disc after a law
enforcement officer testified that it contained recordings of
calls that he had reviewed and explained how he recognized
the voices on the calls.
Strickland does not dispute this authentication
testimony. Instead, he maintains he should have had the

then again after the encounter. “Courts have recognized the
suggestive nature of a single photo procedure.” 2019 Report
of the U.S. Court of Appeals for the Third Circuit Task Force
on Eyewitness Identifications, 92 TEMP. L. REV. 1, 71 (2019).

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opportunity to make “admissibility objections concerning the
identity of the participants” in each individual call before it was
played for the jury. Opening Br. 32. But he does not identify
any specific objection he would have made if he had the
opportunity. Nor did he attempt at trial to object to the
admission of any particular call played for the jury. And any
calls not played could not have prejudiced him. See United
States v. Phibbs, 999 F.2d 1053, 1068 (6th Cir. 1993) (“As this
evidence was never presented to the jury, defendants suffered
no harm.”); United States v. Troupe, 702 F.2d 145, 147 (8th
Cir. 1983) (per curiam) (similar); United States v. Eliano, 522
F.2d 201, 202 (2d Cir. 1975) (per curiam) (similar for portions
of indictment not seen by jury). Therefore, any error on this
front was harmless as well.
II.D. Sufficiency of Evidence
Finally, Strickland challenges the sufficiency of the
evidence on the conspiracy charge. He argues the evidence
was insufficient to establish that he was a participant in the
conspiracy rather than only a customer of it.
Federal Rule of Criminal Procedure 29(a) allows
defendants to move for “a judgment of acquittal of any offense
for which the evidence is insufficient to sustain a conviction.”
We exercise plenary review over the District Court’s denial of
Stickland’s motion under Rule 29. United States v. Eddings,
161 F.4th 199, 203 (3d Cir. 2025). However, we are “highly
deferential” to the role of the jury. Id. (quoting United States
v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en
banc)). We overturn its verdict “only if, viewing the evidence
in the light most favorable to the prosecution, ‘no reasonable
juror could accept the evidence as sufficient to support the
conclusion of the defendant’s guilt beyond a reasonable

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doubt.’” Id. (quoting Caraballo-Rodriguez, 726 F.3d at 430–
31).
Here, the jury’s verdict cleared that deferential standard.
Importantly, there was evidence that a co-conspirator “gave
[Strickland] drugs on credit and awaited payment until after
[Strickland] had sold the drugs to his customers. This
arrangement is sufficient evidence of a conspiracy.” United
States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008).
III. CONCLUSION
Strickland’s arguments fail to overturn his convictions
on appeal. His requested jury instruction, though included in
the Third Circuit Model Jury Instructions, is not legally correct.
Although the District Court may have erred in excluding his
expert testimony, it was harmless. So too was any error in its
admission of recordings in bulk. And there was sufficient
evidence supporting the jury’s verdict on the conspiracy
charge. We thus affirm.