United States v. Murray ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
1-3-1997
United States v. Murray
Precedential or Non-Precedential:
Docket 96-7072
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 96-7072
____________
UNITED STATES OF AMERICA
v.
MICHAEL MURRAY,
Appellant
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-00200-04)
____________________
Argued: August 12, 1996
Before: GREENBERG and ALITO, Circuit Judges,
and FISHER, Senior District Judge *
(Opinion Filed: January 3, 1997)
____________________
OPINION OF THE COURT
DAVID A. RUHNKE (Argued)
RUHNKE & BARRETT
47 Park Street
Montclair, NJ 07042
Attorney for Appellant
DAVID M. BARASCH
UNITED STATES ATTORNEY
WILLIAM A. BEHE (Argued)
Assistant U.S. Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108
Attorneys for Appellee
* The Honorable Clarkson S. Fisher, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
ALITO, Circuit Judge:
Appellant Michael Murray was convicted following a jury
trial of an intentional killing in furtherance of a continuing
criminal enterprise ("CCE") in violation of 21 U.S.C. §
848(e)(1)(A); conspiracy to distribute in excess of five
kilograms of cocaine in violation of 21 U.S.C. §§ 846 and
841(a)(1); and distribution of and possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In
this appeal, Murray argues that the district court erred in (1)
admitting testimony under Fed. R. Evid. 404(b) and 403 that he
had committed a murder not charged in the indictment; (2)
admitting under Fed. R. Evid. 608 evidence supporting the
credibility of the only testifying eyewitness to the events
immediately preceding the charged murder; (3) denying Murray’s
motion to excuse for cause a juror who had read a newspaper
article about the case; and (4) denying Murray’s motion to
suppress the testimony of a jailhouse informant. We hold that
the district court erred under Fed. R. Evid. 404(b) and 403 in
admitting testimony about the uncharged murder and in admitting
evidence about specific instances of conduct supporting the
credibility of the eyewitness, in contravention of Fed. R. Evid.
608(b). We conclude that these errors require reversal of
Murray’s murder conviction but that they are harmless with
respect to his convictions on the other charges.
I.
Murray was indicted and arrested in August 1992. (App.
13) The superseding indictment on which he was tried alleged that
Murray (whose "street name" was "Solo") and co-defendants
Jonathan Ray Bradley ("Fresh" or "Johnny Fresh") and Emanuel
Harrison ("Paradise") intentionally killed Juan Carlos Bacallo on
January 28, 1992, while engaging in and working in furtherance of
a drug distribution CCE. (App. 64) Bradley was alleged to be the
leader of the drug ring, which imported cocaine from New York
City in cookie boxes for sale in the 1400-1600 block of Market
Street in Harrisburg. (App. 65-66)
In August 1993, the government filed notice that it
would seek the death penalty against Murray. (App. 73-75) See
United States v. Bradley, 880 F. Supp. 271 (M.D. Pa. 1994)
(addressing death penalty issues). In June 1994, on the last day
scheduled for jury selection, the parties informed the court that
they had reached a plea agreement, and two days later, Murray,
Bradley, and Harrison entered guilty pleas. (App. 88, 107-11)
Murray’s plea agreement was designed to result in an offense
level of 40 (a base offense level of 43 with a three-level
reduction for acceptance of responsibility), which would have
produced a sentence in the neighborhood of 25 years’
imprisonment, and the agreement provided that he could withdraw
the plea if for any reason his offense level was ultimately
calculated to be higher than 40. (App. 108). Because the
3
district court judge did not believe that Murray was entitled to
a reduction for acceptance of responsibility due to his failure
to show remorse, she held that Murray’s offense level would be
43, which would have required a life sentence. (App. 50) Murray
then moved to withdraw his plea, and the court granted the
motion. (App. 52) Murray sought reconsideration of the death
penalty authorization, and a few days before jury selection was
scheduled to begin, the government advised that the Attorney
General had withdrawn that authorization. (App. 337). Before
this time, the government had been planning to use testimony
concerning the uncharged murder during the sentencing phase as
part of its argument in favor of the death penalty, but after the
death penalty authorization was withdrawn, the government decided
to attempt to introduce this testimony during the guilt phase of
Murray’s trial. See Govt. Br. at 33 n.2. (App. 78, 85).
Murray's trial lasted four days. The government
offered strong evidence concerning his drug distribution
activities, and we will not recount that evidence here. However,
because of its relationship to Murray's two key evidentiary
arguments, we will summarize the evidence relating to the murder.
The government presented evidence that Bacallo, the murder
victim, had been working for Bradley’s drug ring as a street-
level dealer and that he owed Bradley money for drugs he had been
"fronted." (App. 786). Marguerite King, Bacallo’s girlfriend,
testified that a week before he was murdered Bacallo approached
4
Bradley to inform him that he was quitting the drug business and
that Bradley responded by pointing a sawed-off shotgun at
Bacallo’s head and telling him that "once you are in this
business, you never get out." (App. 787, 791) King admitted that
she had lied to the police when she was questioned shortly after
the murder, explaining that she had been afraid to tell the truth
because Harrison was with her. (App. 788-89)
Jay Williams testified that on the night of the murder,
Bacallo, Harrison, and he went to a bar even though Bacallo did
not want to go. (App. 803-04) Williams said that he and Harrison
asked Bacallo if the reason he did not want to go the bar was
because "you don’t got Fresh’s money," but Bacallo denied this.
(App. 803-04) Williams testified that inside the bar Bradley and
Murray "smack[ed]" Bacallo repeatedly and that Bacallo, Bradley,
Murray, and Harrison left the bar and got into a taxicab because,
as Bacallo said, "[t]hey want me to do something for them."
(App. 805-06) Williams admitted that at the time he testified he
was incarcerated for drug trafficking, that he had lied shortly
after the murder when he gave the police a statement (in which he
denied any knowledge of the anything relating to the murder), and
that he had been smoking marijuana and drinking alcohol on the
night of the murder. (App. 799, 807, 811-12)
Richard Brown, a taxicab driver who was "friends" with
Murray, testified that he picked up Bacallo, Murray, and Harrison
(but not Bradley) in his cab on January 28, 1992, and that, at
5
Murray's direction, he drove them to a deserted part of State
Farm Road in Susquehanna Township. (App. 717-19) He gave the
following account of what happened next. Murray told Brown to
pull over and instructed Bacallo to get out of the car because
"he was going to make him walk." (App. 719) Harrison, whom Brown
had noticed was carrying a sawed-off shotgun beneath his coat,
remained in the car. (App. 719) Shortly after Murray and Bacallo
walked away from the car, Brown heard gunshots. (App. 720) A few
seconds later, Murray got back into the car, carrying a .45
caliber pistol, and said something to the effect of "that is what
someone gets for being in violation." (App. 720) "[S]cared as
hell," Brown drove Murray and Harrison back into town and then
returned home. (App. 721-22) When he got home, Brown told
Stephanie Stewart, with whom he was living at the time, what had
happened. (App. 722)
Brown admitted that he had been working as an informant
for the Harrisburg Police Department at the time of the murder,
but that he had not reported what he had seen in the early
morning of January 28, 1992, until July or August of that year.
(App. 723) Brown explained that he waited so long "[b]ecause
quite frankly, I was afraid, not only for myself, but for the
people I cared about the [sic]. My mother was dying of cancer.
I didn’t want any accidents to happen to any of them. I cared
about my children." (App. 723) Brown admitted that he had been
using marijuana and cocaine for 27 years and that he had been
6
convicted of cocaine possession and theft of services. (App.
725)
Stewart testified that when Brown returned home the day
of the murder he told her that "I just saw Solo kill someone."
(App. 767-68) She stated that when she read about the murder in
the newspaper she asked Brown, "Is this what you were talking
about?" and that he replied in the affirmative. (App. 776)
After Murray cross-examined Brown, the government
called Lt. John Goshert, a Harrisburg police officer, to testify
in support of Brown’s reliability. Murray objected to Goshert’s
testimony on the ground that "the character of [Brown] for
truthfulness" had not been "attacked by opinion or reputation
evidence or otherwise," Fed. R. Evid. 608(a), and that even if it
had, Lt. Goshert’s testimony violated Fed. R. Evid. 608(b)’s
proscription on proof of specific instances of conduct by
extrinsic evidence. (App. 822, 826-29) The court overruled
Murray’s objection. (App. 829)
Lt. Goshert testified that, as the officer in charge of
the Harrisburg police drug enforcement unit, he had utilized
Brown as a confidential informant since 1988. (App. 834-36) Lt.
Goshert stated that in his opinion Brown was "extremely reliable"
in providing accurate information. (App. 836) Lt. Goshert
explained that the Harrisburg police had "made" "[i]n excess of
65" cases and had obtained "numerous" search warrants as a result
of Brown’s services as an informant. (App. 836)
7
Robert McCallister, a Susquehanna police officer,
testified that he discovered Bacallo’s body on the morning of
January 28, 1992, and found seven shell casings nearby. (App.
648, 651-52) James Rottmund, a ballistics expert, testified that
all seven casings were from the same .45 caliber gun and that the
shots were fired from a distance of at least five feet. (App.
683-84) Dr. Isadore Mihalakis, a medical examiner, testified that
Bacallo had suffered eight gunshot wounds: one to the right
thigh, three to the right buttock, two to one hand, one to the
other wrist, and one to the head. (App. 702-05, 707) Dr.
Mihalakis testified that all eight wounds (which, he said, might
have been caused by seven shots) were inflicted from behind, that
the shot to the head was the final one, and that it occurred with
Bacallo in a prone position. (App. 705, 710) He concluded that
the manner of death was homicide. (App. 713)
Randy Drawbaugh and Sean Proffit, both jailhouse
informants, testified as well. Drawbaugh testified that Murray
had told him that "he shot a guy named Carlos" because "Carlos"
owed him money. (App. 851-52) Proffit testified that Murray told
him that he was going to "get" all of the witnesses against him
when he was released from jail and, in particular, that "there
was a certain witness named Juice [Xenophon Singleton] that he
was going to get and throw his baby off the roof of a building."
8
(App. 870) Drawbaugh and Proffit were impeached with their
criminal records.1
Murray’s Rule 404(b) and 403 arguments are based on the
testimony of Jemeke Stukes ("Quest"). Stukes testified that,
while in New York City, he met Bradley, who introduced him to
Murray. In August 1991, Stukes said, he went to Harrisburg to
sell cocaine at Bradley’s invitation. (App. 463-64) Stukes was
indicted and arrested at the same time as Murray and pled guilty
in January 1993 to conspiracy to distribute cocaine, for which he
was sentenced to 24 months’ imprisonment. (App. 19, 449) At
the time of Murray’s trial, Stukes had recently completed a
combined 38 months of imprisonment on the federal conviction and
related state charges. (App. 446-50) Stukes testified that
Murray committed an uncharged murder in New York City in 1991.
According to Stukes, in the middle of August 1991, "[a] guy by
the name of Howie came by Mr. Bradley’s store in Manhattan and
said his little cousin was having problems with this guy,"
referring to a dispute over drug territory. (App. 457) Bradley
told Howie that "me and Solo will take care of it," and he asked
Stukes to "go along." (App. 457) Stukes explained that "Fresh
[Bradley] had me go along to see how his reputation is
established because, you know, he has a rep in New York as being
1
1. Prior to trial, Murray had moved to exclude Proffit’s
testimony on the ground that Proffit’s conversation with him
violated Massiah v. United States, 377 U.S. 201 (1964), but after
a pretrial hearing, the court denied the motion. (App. 412)
9
a shooter, and, you know, a fairly large drug dealer." (App.
458) On a Sunday afternoon, "Howie" drove Bradley, Murray, and
Stukes in a van to a housing project at 169th Street and
Washington Avenue in the Bronx to look for a "heavy-set"
Panamanian man. (App. 459) Stukes testified that Bradley and
Murray wrapped their faces in towels so that only their eyes were
visible and that all three of them left the van while Howie
remained in it. (App. 459) Then, according to Stukes, "Solo
[Murray] went up to the guy" while "Fresh [Bradley] stood across
the street." (App. 459) Stukes testified that "Solo went up to
the guy and pumped four slugs in his chest. And as he was
running back towards the van, Fresh, you know, had his gun out
and he sprayed the building, you know, fired shots at the
building because there was people standing out there." (App.
460) Stukes fled the scene in a taxicab and did not report the
incident to the police. (App. 461, 463) Shortly thereafter,
Stukes went to Harrisburg with Bradley and Murray.
A New York City Housing Police report shows that a man
named Jorge Tesis was shot and killed on Sunday, July 21, 1991,
at the location indicated by Stukes. (App. 328) Two other
individuals were also shot but were not seriously injured. (App.
328) The report describes the alleged perpetrator as a 5'8" tall
20-year old; Murray was 18 or 19 years old at the time and is 6'
tall. (App. 328, 822) According to the report, a "witness states
10
male walked up to [the victim] and opened fire with a gun
striking victim in the stomach and chest." (App. 329)
Murray was convicted on all counts. (App. 57) A
sentence of life imprisonment was imposed, and Murray appealed.
II.
Murray challenges the admission of Stukes’ testimony
under both Fed. R. Evid. 404(b) and Fed. R. Evid. 403. We
address his Rule 404(b) argument first.
A. As a general rule, "all relevant evidence is
admissible," Fed. R. Evid. 402, and evidence is "relevant" if its
existence simply has some "tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. However, Rule 404(b)
restricts the admission of one category of relevant evidence.
Rule 404(b) provides in part as follows:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of the person in order to show that
he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Thus, in order for "[e]vidence of other crimes, wrongs, or acts"
to be admissible, it must be relevant to prove something other
than "the character of the person in order to show that he acted
in conformity therewith." In this case, therefore, Rule 404(b)
11
barred Stukes' testimony if it was relevant only to permit the
jury to infer that Murray had a homicidal character and that this
character found expression in the murder of Bacallo. But if
Stukes' testimony was relevant to prove anything else, Rule
404(b) did not preclude its admission. On appeal, Rule 404(b)
rulings "may be reversed only when they are clearly contrary to
reason and not justified by the evidence." United States v.
Balter, 91 F.3d 427, 437 (3d Cir. 1996)(quotation omitted). See
also United States v. Himelwright, 42 F.3d 777, 781 (3d Cir.
1994).
The admission of evidence that is allowed by Rule
404(b) is not disfavored, but trial judges need to exercise
particular care in admitting such evidence. This is so for at
least two reasons. First, the line between what is permitted and
what is prohibited under Rule 404(b) is sometimes quite subtle.
Second, Rule 404(b) evidence sometimes carries a substantial
danger of unfair prejudice and thus raises serious questions
under Fed. R. Evid. 403. Therefore, it is advisable for a trial
judge to insist that a party offering Rule 404(b) evidence place
on the record a clear explanation of the chain of inferences
leading from the evidence in question to a fact "that is of
consequence to the determination of the action." Fed. R. Evid
401. And it is likewise advisable for the trial court to place
on the record a clear explanation of the basis for its ruling on
the admission of the evidence. Not only do these procedures help
12
to ensure that sensitive Rule 404(b) rulings are made with care
(and thus to diminish the likelihood that these rulings will
result in reversals), but these procedures greatly assist the
process of appellate review. Consequently, although the language
of Rule 404(b) does not require such procedures, our cases have
emphasized their usefulness. See Himelwright, 42 F.3d at 782;
United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992).
Unfortunately, these procedures were not followed here.
The government never provided a clear explanation on the record
of the chain of inferences on which it was relying.2 Its best
explanation appears to have occurred at the charge conference,
2. The government contends that Murray never objected under Rule
404(b) or Rule 403 to the introduction of Stukes’ testimony.
However, it appears to us that Murray did raise both of these
issues. The court opened the August 10, 1995 hearing by making
its Rule 403 ruling (App. 377), which indicates that Murray had
argued this point in chambers. In addition, Murray repeated the
objection on the record, if somewhat obliquely. See App. 382
("Your Honor, I would also point out that as the Court has noted,
it is highly prejudicial.") Shortly thereafter, the government
referred to the court’s off-the-record discussion of the Rule 403
issue. (App. 385) At an August 14 hearing, Murray’s counsel
noted that "[m]ost of my argument on the 404(b) material, the New
York murders, was said in chambers off the record." (App. 818)
Later, when the court asked Murray’s counsel to draft a limiting
instruction for Stukes’ testimony, he replied that "I am not
quite sure what the relevance was, and it was my contention that
it was not relevant." (App. 820) While it is true that much of
Murray’s ire with respect to Stukes’ testimony was directed at
the fact that he did not receive notice that it would be used in
the government’s case-in-chief until the day before trial
(because of the government’s last-minute change in strategy
precipitated by the withdrawal of the death penalty
authorization), we are satisfied that Murray made it sufficiently
clear that he was objecting to its relevance under Rule 404(b)
and to its unfair prejudicial effect under Rule 403. Fed. R.
Evid. 103(a). Cf. United States v. Long, 574 F.2d 761, 766 (3d
Cir.), cert. denied, 439 U.S. 985 (1978).
13
when the prosecutor stated that Stukes’ testimony "wasn’t just
[offered for] identity. Role in the organization, common scheme,
plan, a number of different reasons." (App. 957) The
prosecution provided no further explanation beyond these
conclusory statements, and the district court similarly gave
little explanation for its ruling admitting this highly sensitive
evidence. The district court's most complete on-the-record
explanation appears to have occurred during the charge to the
jury when it said only that the evidence was admitted "for the
very limited purpose to show identity, role in the conspiracy, a
common scheme or plan," and cautioned that it was not admissible
to prove character. (App. 995-96) We have searched the record
but have been unable to find anything other than these conclusory
assertions to support the admission of Stukes’ testimony
regarding the uncharged New York murder.
We have examined each of the grounds offered by the
prosecution and accepted by the trial judge for the admission of
this testimony, and even under the highly deferential standard of
review that we generally apply to a trial judge's Rule 404(b)
rulings, we believe that the admission of this evidence was
improper. The government’s principal Rule 404(b) argument seems
to be that Stukes’ testimony was relevant to show Murray’s role
in the conspiracy. While the government's brief does little to
flesh out this argument, we perceive the argument to run as
follows: Murray murdered the victim in New York City at the
14
behest of the CCE charged in the indictment; from this fact, the
jury could infer that Murray was the CCE's designated "shooter";
and from this fact, the jury could infer that the shooting of
Bacallo, which was committed in the interests of the Bradley CCE,
was performed by Murray.
This theory, however, is undermined by the absence of
any evidence that the New York murder about which Stukes
testified was in any way related to the charged CCE. On the
contrary, it appears from Stukes’ testimony that the murder arose
out of a dispute between the cousin of a friend of Bradley’s
("Howie") and the New York victim over drug sales in New York
City. The government has not directed our attention to any
evidence that Howie, his cousin, or the New York victim were
involved in the CCE described in the indictment or that the
dispute with the New York victim had anything to do with the
activities of that CCE, whose drug sales took place in
Harrisburg. (App. 65-66) Thus, evidence that Murray was a
triggerman in the New York murder does not tend to show that he
performed the same role in the Harrisburg CCE, and consequently
this evidence does not seem to be admissible under Rule 404(b) to
show his role in the charged CCE.3
3. The government might conceivably have argued, not that the
New York murder showed that Murray played the role of the CCE's
designated killer, but that he played the role of Bradley's
personal killer. But even if the government had made this
argument, the legitimate probative value of this evidence would
have been substantially outweighed by the danger of unfair
prejudice for essentially the reasons set out in part IIB of this
opinion.
15
The absence of evidence that the New York murder was
related to the CCE charged in the indictment also dooms the
government's argument that evidence of the New York murder was
admissible because it and Bacallo’s murder were committed on the
basis of a common plan or scheme. As we explained in Government
of the Virgin Islands v. Pinney, 967 F.2d 912, 916 (3d Cir.
1992), "[o]rdinarily, when courts speak of ‘common plan or
scheme,’ they are referring to a situation in which the charged
and the uncharged crimes are parts of a single series of events."
In this case, there is no evidence that the two killings were
planned together or that they involved a common design. Cf.
United States v. Baker, 82 F.3d 273, 276 (8th Cir. 1996)
(admitting evidence that the defendant police officer had
previously employed a "remarkably similar" extortion scheme in
which "a motorist is stopped for speeding, a firearm is
discovered, and the motorist is given the choice of facing
charges or ‘working it out’ with Baker").4
4. The same is true with respect to the government's suggestion
on appeal that evidence of the New York murder was admissible to
establish the existence of the charged CCE and Murray's
membership in it. See Govt. Br. at 29. Since there was no
evidence that the New York murder was committed as part of the
charged CCE, Murray's commission of that murder does not tend to
show either the existence of that enterprise or Murray's
membership.
Another related argument advanced by the government on appeal
is the contention that the New York murder showed Murray's motive
for the Bacallo murder, "that is to advance the interests of the
Continuing Criminal Enterprise." Govt. Br. at 35. Apparently,
the government's theory is that the New York murder was relevant
to show Murray's membership in the CCE and thus to show that he
had a motive for the Bacallo killing, which furthered the CCE's
16
We also see no merit in the government's argument in
the district court that proof of the New York murder was
admissible to prove "identity" because that murder was "a
signature killing" and because Bacallo’s murder bore the same
signature. (App. 820) "The evidence concerning the manner in
which the two alleged crimes were committed here was neither
sufficiently detailed nor significantly unusual to permit any
inference that the perpetrator of the second [crime] was the same
perpetrator of the first." Pinney, 967 F.2d at 916. The New
York murder was committed during the day on a public street at
the spot where the victim was found. The shooting occurred in
the presence of bystanders, some of whom were apparently hit.
Two gunmen participated. By contrast, the Harrisburg murder
occurred at night in a secluded spot to which the victim was
taken. There were no innocent bystanders, and it appears that
only one gun was used.5
(..continued)
interests. But the lack of evidence linking the New York murder
to the CCE is fatal to this theory.
5. On appeal, the government advances the apparently new
argument that evidence of the New York murder was admissible to
refute in advance a claim that Murray had made in a letter to the
district court after the sentencing hearing that followed his
abortive guilty plea. At that time, Murray claimed that Bacallo
had lunged at him prior to the shooting, and the government
maintains that evidence of the New York murder was relevant to
show that the Bacallo killing was not accidental and was not
committed in self-defense. Govt. Br. at 29-30. The government
further argues that it "did not have to wait for rebuttal to
offer this evidence." Id. at 30. Murray, however, did not
testify, and the government does not claim that the defense ever
suggested to the jury that the Bacallo murder was accidental or
that it occurred in self-defense. Moreover, the government
itself notes that the theory that the killing was accidental or
17
In sum, we do not believe that any of the grounds
advanced by the prosecution and accepted by the district court at
trial can justify the admission of the evidence of the New York
murder under Rule 404(b).
B. Moreover, even if this evidence had some relevance
to show something other than that Murray has a homicidal
character, this relevance was so slight and the potential for
unfair prejudice was so great that Fed. R. Evid. 403 demanded the
exclusion of the evidence.
Rule 403 provides in pertinent part that "[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice
. . . ." We review a Rule 403 ruling for abuse of discretion
unless the district court failed to explain its ruling and "its
reasons for doing so are not otherwise apparent from the record."
Himelwright, 42 F.3d at 781.
In this case, the district court's on-record
explanation for its ruling was minimal. It appears that the
district court conducted virtually all of its Rule 403 discussion
off the record in chambers and that the sum total of its on-
record treatment of the issue is the conclusory statement that
(..continued)
in self-defense "was in stark contrast to the . . . nature of
Bacallo's wounds." Id. at 9. Thus, without any suggestion by
the defense that the killing was accidental or occurred in self-
defense, it is questionable whether the New York killing was
relevant, and in any event its probative value to show absence of
accident or self-defense was undoubtedly negligible.
18
"[t]he Court recognizes that it is prejudicial, but it is also
highly probative." (App. 377) When the record does not contain
an adequate explanation of a trial judge's Rule 403 ruling, a
remand for clarification may be appropriate, but here we see no
reason for a remand, because we see no basis on which the
admission of the evidence in question could be sustained. Cf.
United States v. Sriyuth, 98 F.3d 739, 744 n.8 (3d Cir. 1996)
("We take this occasion, once again, to remind the district
courts of their obligation to perform this weighing process on
the record. Although we are able to perform this balancing here,
other cases may require remand to the court for such proceedings
or even for a new trial.").
It should go without saying that evidence in a murder
trial that the defendant committed another prior murder poses a
high risk of unfair prejudice. Stukes' testimony concerning the
uncharged New York murder informed the jury that Murray had shot
at point-blank range a man with whom he had no personal conflict
and whom he appears not to have even known. Evidence would have
to possess significant probative value to avoid being
substantially outweighed by the grave danger of unfair prejudice
that this testimony carried.
In the previous section of this opinion, we reviewed
all of the government's arguments as to how the evidence of the
New York murder was relevant to prove something other than
Murray's homicidal character, and we concluded that this evidence
19
was not even relevant to show any of the permissible things
mentioned by the government or the district court at trial. But
even if the evidence of the New York murder had some relevance
under one or more of these theories, its legitimate probative
value was unquestionably slight. We will now again discuss all
of the government's theories, but we will add a few comments
about the government's best theory, i.e., that the proof of the
New York murder was relevant to show Murray's role in the CCE.
As we previously noted, the government's theory
apparently is that the evidence of the New York murder was
relevant to show that Murray played the role of the CCE's killer,
that the Bacallo murder was committed to serve the CCE's
interests, and that therefore it could be inferred that Murray
committed that murder. Even if there were some slight evidence
that the New York murder was connected with the CCE charged in
the indictment, the probative value of the testimony regarding
the New York murder to show that Murray committed the Bacallo
murder would still be small. Under the government's theory, the
probative value of the evidence of the New York murder depends on
the uniqueness of Murray's role as the CCE's "shooter." The
events surrounding the New York murder, however, as recounted by
Stukes, do not show that Murray played the unique and distinctive
role of the CCE's killer. On the contrary, Stukes testified
that Bradley "has a rep in New York as being a shooter,"
explained that Bradley brought him along to see how Bradley
20
established that reputation, and testified that Bradley "sprayed
the building" with gunfire. (App. 458, 460) Accordingly, the
testimony regarding the New York murder suggested at most that
Murray was a shooter, not the shooter. Unless there were
significant evidence linking the New York murder to the CCE,
Stukes' account of the New York murder would appear to have
little legitimate probative value.6 Accordingly, we hold that
the district court abused its discretion in concluding that any
legitimate probative value possessed by this evidence was not
substantially outweighed by the danger of unfair prejudice.
We are unable to conclude that the district court’s
Rule 404(b) and Rule 403 errors were harmless in relation to the
murder charge. In order to do so, we would have to be persuaded
that it is "highly probable that the evidence . . . did not
contribute to the jury’s judgment of conviction." Government of
Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir. 1993)
(quoting United States v. Schwartz, 790 F.2d 1059, 1062 (3d Cir.
1986)). While the jury might have convicted Murray of the murder
without relying on Stukes’ testimony, we do not believe that the
other evidence against him was so overwhelming as to render that
conclusion "highly probable." There was only one eyewitness, and
6. On redirect examination, Stukes was asked, "What was Mr.
Murray’s role or function or reputation in your crew?" and Stukes
responded that he was "[j]ust a shooter." (App. 522-23) The
parties have not addressed the question whether this testimony,
as opposed to Stukes' testimony concerning the New York murder,
was properly admitted, and we therefore do not reach that
question here.
21
the jury might well have discounted or discredited his testimony
based on his delay in reporting what he knew and his extensive
history of drug use. Furthermore, as explained below, his
credibility was improperly bolstered with testimony that was
proscribed by Fed. R. Evid. 608. Many of the government’s other
witnesses were similarly impeached on the basis of
inconsistencies in their stories, their interest in cooperating
with the prosecution, and their own drug use. Moreover, in its
closing argument, the government emphasized Stukes’ testimony.
The prosecutor said:
[Stukes] was present in July of 1991 when this defendant gunned
down an individual in New York, participated in a
murder with Jonathan Ray Bradley of a drug dealer over
drugs. Doesn’t that help establish that this defendant
was part of this conspiracy whose role as Stukes said
was the shooter, whose favorite weapon was a .45?
This is not the trial of that incident in New York. This is not
that trial. That evidence is offered to establish the
reliability of all of the other information
establishing this defendant as the killer of Juan
Carlos Bacallao [sic] in this case. And if you credit
that testimony of Stukes, doesn’t that help establish
that this defendant is in fact a killer, the shooter,
the executioner of Juan Carlos Bacallao [sic]?
App. 915-16 (emphasis added).
We cannot disregard the possibility that the evidence
of the New York murder "weigh[ed] too much with the jury and . .
. so overpersuade[d] them as to prejudice one with a bad general
record and deny him a fair opportunity to defend against a
particular charge." United States v. Sampson, 980 F.2d 883, 886
(3d Cir. 1992) (quoting Michelson v. United States, 335 U.S. 469,
22
476-76 (1948)). We are thus constrained to reverse the judgment
of conviction as to the murder charge contained in count two and
to remand for a new trial on that charge to be conducted without
evidence of the New York murder. In contrast, we believe that
the erroneous admission of Stukes' testimony was harmless with
respect to the drug charges contained in counts three and six of
the superseding indictment. Murray's argument on appeal focuses
exclusively on the murder conviction, and it is with respect to
that charge that the jury could have been improperly influenced
by Stukes' testimony; while evidence that Murray was a murderer
might have contributed to his conviction for murder, such
evidence is unlikely to have persuaded the jury that Murray was
guilty of the drug charges. Moreover, the government presented
substantially stronger evidence in support of the drug charges
than in support of the murder charge, including testimony by many
individuals who participated in the CCE or who were associated
with participants as well as by a Harrisburg police officer who
had made an undercover purchase of cocaine from Murray. We
therefore conclude that it is "highly probable," Archibald, 987
F.2d at 187, that Stukes' testimony did not contribute to the
jury's conviction of Murray on the drug charges.
III.
Murray argues that the admission of the testimony of
Lt. John Goshert of the Harrisburg police department contravened
23
Fed. R. Evid. 608. Murray timely and clearly objected to Lt.
Goshert’s testimony. (App. 826-28) In relevant part, Rule 608
provides:
(a) The credibility of a witness may be . . . supported by
evidence in the form of opinion or reputation, but
subject to these limitations . . . (2) evidence of
truthful character is admissible only after the
character of the witness for truthfulness has been
attacked by opinion or reputation evidence or
otherwise.
(b) Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’
credibility . . . may not be proved by extrinsic
evidence.
Murray’s first argument is that Brown’s character for
truthfulness was not "attacked by opinion or reputation evidence
or otherwise." We disagree. It is true that Murray did not
present any opinion or reputation evidence to impeach Brown, but
Murray’s counsel performed an extended and vigorous cross-
examination of Brown that exposed Brown’s various illegal and
sordid activities. Murray’s counsel questioned Brown about his
long-standing and heavy drug use, his acquaintance with many
Harrisburg drug dealers, his apparent under-the-table tax-free
compensation for his work as an informant, his convictions for
drug possession and theft of services, his unlawful carrying of
an unlicensed firearm, his concealment of his drug use from his
friend and contact in the Harrisburg police department, and his
prior inconsistent statements to the grand jury. (App. 730-61)
In view of this questioning, the opinion or reputation testimony
given by Lt. Goshert fell within the language of Rule 608(a)(2)
24
permitting the introduction of such evidence to support a
witness’ credibility when his character for truthfulness has been
"otherwise" attacked. See, e.g., United States v. Dring, 930
F.2d 687, 692 (9th Cir. 1991), cert. denied, 506 U.S. 836 (1992);
Fed. R. Evid. 608(a), Advisory Committee Notes ("evidence of
misconduct, including conviction of crime," permits
rehabilitation).
Murray’s more persuasive argument is founded upon Rule
608(b)’s prohibition on proving specific instances of a witness’
conduct by extrinsic evidence. Once Brown’s character for
truthfulness was attacked by Murray’s counsel, the government was
entitled to attempt to rehabilitate Brown by calling a witness to
give opinion or reputation testimony as to Brown’s character for
truthfulness. But the government was not entitled to present
"extrinsic evidence" of "specific instances" of Brown’s conduct
"for the purpose of . . . supporting [his] credibility." Fed. R.
Evid. 608(b). Lt. Goshert’s testimony was as follows:
Q. Lieutenant Goshert, do you know an individual by the name of
Richard Brown?
A. Yes, I do.
Q. Have you ever used Mr. Brown as a confidential informant?
A. On numerous occasions, the Harrisburg Police has utilized him.
Q. As a result pf [sic] your using Richard Brown as a
confidential informant, have you made any cases?
A. Yes, we have.
Q. Do you have an idea of approximately how many?
A. In excess of 65. 65, 66 something like that.
25
Q. And search warrants, have you obtained search warrants based
on his information?
A. Yes, we have numerous times.
Q. How long a period of time have you been dealing with Mr.
Brown?
A. Since 1988.
Q. Based on your dealings with Mr. Brown and the cases you said
that he has made, can you give us your opinion as to
his reputation for being a reliable individual?
A. He is extremely reliable.
Q. In terms of the accuracy of the information?
A. Yes.
App. 835-36.
This testimony, in our view, included "extrinsic
evidence" of Brown’s character for truthfulness. United States
v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989)("Extrinsic evidence
is evidence offered through other witnesses rather than through
cross-examination of the witness himself or herself."), cert.
denied, 493 U.S. 1087 (1990). Murray argues that Lt. Goshert’s
quantification of the cases that Brown had "made" constituted
evidence of "specific instances" of Brown’s conduct and thus
should have been excluded under Rule 608(b). The government
contends that Lt. Goshert’s testimony was proper as foundation
for his opinion as to Brown’s character for truthfulness. In
support of the admission of Lt. Goshert’s testimony in the
district court, the government argued that "[t]here has got to be
some basis for the jury to know how he can give that opinion as
26
to his reputation. And by letting the jury know they have a
close working relationship over a period of time and that they
have been involved in all of these incidents, then there is a
basis for him giving that opinion." (App. 828) We agree that Lt.
Goshert’s testimony that the Harrisburg police had used Brown as
a confidential informant on "numerous occasions" since 1988 was
necessary to establish that he had a basis on which to offer his
opinion as to Brown’s character for truthfulness. However, his
testimony that Brown had "made" 65 or 66 cases was more specific
than can be justified as necessary to establish a foundation.7
United States v. Taylor, 900 F.2d 779 (4th Cir. 1990)
presented a situation extremely similar to the instant case. In
Taylor as in this case, the government’s fortunes depended in
large part on the credibility of an informant, and the government
called a law enforcement officer to testify as to the informant’s
reliability. The officer testified that the informant "had acted
as a buyer for the government on 15 to 18 drug buys," that he
"had given reliable information in a particular case which
resulted in the seller’s conviction," and that "several others
either pleaded guilty or were convicted as a result of [the
informant’s] testimony." Id. at 780-81. The court held that it
was error to admit evidence that the informant’s testimony had
7.7 The government prepared a chart detailing the particular
instances where Brown had provided information to the Harrisburg
police, but it conceded that the chart was not admissible under
Rule 608(b). (App. 827)
27
resulted in convictions in other cases. Id. at 781. Lt.
Goshert’s testimony was substantially identical, and we conclude
that its admission contravened Rule 608(b).
We are buttressed in this conclusion by the emphasis
placed by the government on Lt. Goshert’s testimony in its
closing argument. The government first told the jury that "[i]t
was very important, wasn’t it, to hear from him?" and then
argued:
And Lieutenant Goshert, you think he would let any of his men or
himself kick down some door with a search warrant on a
drug raid or make an arrest on information from
somebody that they didn’t think was reliable? Sixty-
seven cases, Richard Brown has proven to be a reliable
source of information for. They stake their lives on
his testimony -- on his information. Does that give
you some sense of how reliable he is?
App. 913-14. This emphasis compounded the significance of the
error in allowing Lt. Goshert’s specific-instance testimony and
prevents us from concluding that the error was harmless.8 On
retrial, the district court should limit the government to
8. 8In United States v. Piva, 870 F.2d 753, 760-61 & n.9 (1st
Cir. 1989), the court held that it was error to allow "a
professional government witness [to] vouch[] for the credibility
of an informant," but found that the district court rendered the
error harmless by instructing the jury that: "Members of the
jury, you have to make a determination whether you believe Mr.
Pacheco [the informant]. Whether Mr. Costa believes him or not
is not relevant to that, you have to make that determination,
based on your own observations of Mr. Pacheco and only that, and
your judgment as to whether he was telling the truth." No such
curative instruction was given in this case.
28
eliciting from Lt. Goshert only such testimony as is necessary to
establish a foundation for his opinion.9
IV.
Murray also argues that the district court erred in
denying his motion to disqualify for cause a juror who had read a
newspaper article about the case. Immediately before trial
commenced on August 10, 1995, the court asked whether any jurors
had seen an article that appeared in the Harrisburg Patriot-News
on August 2, 1995, entitled "Feds won’t seek death penalty for
accused killer, 22." (App. 85) The article stated, inter alia,
that Murray had previously pled guilty to the murder and had
described it as "not a premeditation or contract killing. It was
just a stupid unfortunate incident." (App. 85)
A juror named Mary Kling acknowledged that she had read
the article and was subjected to voir dire by the court and by
Murray’s counsel. (App. 413-15) Kling stated that all she could
remember from the article was that the government had decided not
to seek the death penalty and had not given any explanation for
that decision, that Murray was accused of murder, and that he was
9. Murray does not argue that the erroneous admission of Lt.
Goshert’s testimony somehow taints his convictions on the drug
charges. The prejudicial effect of Lt. Goshert’s testimony was
to bolster the credibility of Richard Brown, who testified about
the murder of which Murray was convicted. However, Brown did not
testify in support of the drug charges. We therefore conclude
that the district court’s Rule 608(b) error does not require
reversal of Murray’s drug convictions.
29
from New York. (App. 414) She denied that she had formed any
opinion as to Murray’s guilt or innocence and affirmed that she
could decide the case on the basis of the evidence. (App. 413-
14) The court was satisfied that Kling could serve impartially
and denied Murray’s motion to excuse her for cause. (App. 419)
"In determining whether a particular juror should be
excused for cause, our main concern is whether the juror holds a
particular belief or opinion that will prevent or substantially
impair the performance of his duties as a juror in accordance
with his instructions and his oath." Kirk v. Raymark Indus.,
Inc., 61 F.3d 147, 153 (3d Cir. 1995) (quotations omitted), cert.
denied, 116 S. Ct. 1015 (1996). "Determining whether a
prospective juror can render a fair verdict lies peculiarly
within a trial judge's province." United States v. Polan, 970
F.2d 1280, 1284 (3d Cir. 1992), cert. denied, 507 U.S. 953 (1993)
(quotation omitted). We review the district court’s ruling only
for an abuse of discretion; "the question of the partiality of an
individual juror ``is plainly one of historical fact: did a juror
swear that he could set aside any opinion he might hold and
decide the case on the evidence, and should the juror's
protestation of impartiality have been believed . . . .
[Therefore,] the trial court's resolution of such questions is
entitled, even on direct appeal, to special deference.'" United
States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985), cert. denied,
30
476 U.S. 1172 (1986) (quoting Patton v. Yount, 104 S. Ct. 2885,
2891 (1984)).
Under this deferential standard of review, we are
unable to conclude that the court erred in allowing Kling to
serve as a juror.
V.
Murray’s final argument is that the district court
erred in allowing Sean Proffit to testify as to what Murray told
him in jail. Murray argues that the admission of Proffit’s
testimony deprived him of his Sixth Amendment right to counsel
under Massiah v. United States, 377 U.S. 201 (1964). Massiah
held that the government may not, consistent with the Sixth
Amendment, use as evidence statements made by the defendant
"which [it] had deliberately elicited from him after he had been
indicted and in the absence of his counsel." Id. at 206. See
also United States v. Brink, 39 F.3d 419, 421-22 (3d Cir. 1994).
Thus, if the government had deliberately placed Proffit in
proximity with Murray with the intention of eliciting
incriminating statements from Murray in the absence of his
counsel, Murray’s claim would be valid. See United States v.
Henry, 447 U.S. 264, 274 (1980). In this case, however, the
district court held an evidentiary hearing following Murray’s
objection to Proffit’s testimony and concluded that there was no
31
evidence that the government did so. (App. 396-412) We perceive
no error in the district court’s treatment of this issue.
VI.
For the foregoing reasons, we reverse the judgment of
conviction and sentence on the murder charge and remand for a new
trial. We affirm the judgment of conviction as to the drug
charges and remand for resentencing, if appropriate, on those
counts.
32
33