United States v. Kareem Bailey , 840 F.3d 99 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2128
_____________
UNITED STATES OF AMERICA
v.
KAREEM BAILEY, a/k/a Baby Boy
Kareem Bailey,
Appellant
_____________
No. 15-2246
_____________
UNITED STATES OF AMERICA
v.
TERRY DAVIS, a/k/a Mace
Terry Davis,
Appellant
_____________
No. 15-2275
_____________
UNITED STATES OF AMERICA
v.
LAMAR MACON, a/k/a Gunner,
a/k/a Gunna, a/k/a Mar
Lamar Macon,
Appellant
_____________
No. 15-2276
_____________
UNITED STATES OF AMERICA
v.
DOMINIQUE VENABLE, a/k/a Poppi-What-You-Need
Dominique Venable,
Appellant
Consolidated Appeals from the United States District Court
for the District of New Jersey
(D.N.J. Nos. 1-14-cr-00050-009, 1-14-cr-0050-008,
1-14-cr-00050-014 & 1-14-cr-00050-015).
District Court Judge: Honorable Joseph E. Irenas
_____________
Argued: April 28, 2016
Before: McKEE, Chief Judge, 1 JORDAN and ROTH, Circuit
Judges
(Filed: October 18, 2016)
_____________
John M. Holliday [Argued]
Golden Crest Corporate Center
2273 State Highway 33, Suite 207
Trenton, New Jersey 08690,
Counsel for Appellant Kareem Bailey in No. 15-2128
1
Judge Theodore McKee concluded his term as Chief of the
United States Court of Appeals for the Third Circuit on September
30, 2016. Judge D. Brooks Smith became Chief Judge on October
1, 2016.
2
Gina A. Capuano [Argued]
200 Haddon Ave.
Westmont, NJ 08180,
Counsel for Appellant Terry Davis in No. 15-2246
William R. Spade, Jr. [Argued]
1525 Locust Street, Suite 1400
Philadelphia, PA 19102,
Counsel for Appellant Lamar Macon in No. 15-2275
James R. Murphy [Argued]
947 Sate Road, Suite 205
Princeton, New Jersey 08540
Counsel for Appellant Dominique Venable in No. 15-
2276
Mark E. Coyne
Norman Gross [Argued]
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
Counsel for Appellee
_____________
OPINION
_____________
McKEE, Chief Judge.
This appeal arises from the convictions of four men
belonging to a violent heroin trafficking organization that
operated out of Atlantic City, New Jersey. Over the course of
two and a half years, law enforcement officials documented
the extensive reach of this organization and the crimes its
members committed. Thirty-four people were charged with
drug-trafficking related offenses as a result of the
investigation. They include the four defendant/appellants
here: Kareem Bailey, Terry Davis, Lamar Macon, and
3
Dominique Venable.2 A jury convicted them of conspiracy to
distribute and possess with intent to distribute heroin within
1,000 feet of a public housing complex, in violation of 21
U.S.C. § 846, 21 U.S.C. § 841(a)(1) & (b)(1)(A), and 21
U.S.C. § 860, use or possession of a firearm in furtherance of
that drug trafficking offense, in violation of 21 U.S.C.
§ 924(c)(1)(A)(i), (ii), (iii) and 18 U.S.C. § 2, and use of a
communication facility to further a drug conspiracy, in
violation of 21 U.S.C. § 843(b). The jury also convicted Terry
Davis of possession of a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1).
On appeal, Bailey, Davis, Macon, and Venable make
four principal arguments for reversal. They contend that: (1)
the evidence presented at trial was insufficient to support their
convictions; (2) the district court should have suppressed the
government’s wiretapping evidence; (3) the district court
violated Federal Rules of Evidence 404(b) and 403 when it
admitted certain evidence regarding a drug-trafficking-related
murder and a drug-trafficking-related assault; and (4) the
district court abused its discretion when it declined to order a
mistrial on two different grounds. Bailey further contends that
the district court abused its discretion in admitting evidence
of his past convictions for possession of cocaine with intent to
distribute and possession of a firearm. The defendants’ first,
second, and fourth arguments are entirely without merit.
However, their Rule 403 claim merits serious consideration.
As we will explain, we agree that the district court violated
Rule 403 when it admitted certain evidence. Nonetheless,
given the overwhelming amount of other evidence of guilt,
we hold that the error was harmless. Accordingly, we will
affirm the convictions.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Derry Drug Trafficking Organization
Bailey, Davis, Macon, and Venable were associates in
a violent heroin-trafficking organization that operated out of
the Stanley Holmes Public Housing Village in Atlantic City,
New Jersey. This organization was led by Mykal Derry and
known as the Derry Drug Trafficking Organization (DDTO).
2
For the sake of simplicity, we will refer to the
defendants/appellants as either “defendant” or “defendants”
throughout this opinion.
4
Derry purchased large quantities of heroin from three New
Jersey suppliers and distributed the heroin in “bundles” (ten
wax envelopes of heroin) and “bricks” (five bundles) to
members of the DDTO. These DDTO associates then sold the
heroin in and around the public housing complex.
Investigators estimated that Derry received 717 bricks of
heroin for distribution from October 2012 to February 2013.
The DDTO maintained control of its drug-trafficking turf by
assaulting, robbing, and killing rival drug dealers.
In July of 2010, the FBI began investigating the
DDTO in conjunction with state and local law enforcement
agencies. At first, confidential informants and undercover
police officers made a series of controlled buys that were
captured on audio and video recordings. By October, officers
had identified Mykal Derry as the leader of the organization.
For the next two years, police relied on confidential
informants, controlled buys, physical surveillance, phone
records, pen registers, and intercepted prison phone calls
placed from the Atlantic County Jail to map the scope of the
DDTO’s operations.
However, the investigators eventually found these
techniques inadequate to uncover the full reach of the
conspiracy. In an attempt to remedy this, the government
secured authorization for a wiretap from the United States
District Court for the District of New Jersey in October 2012.
Wiretaps on the phones of Mykal Derry and one of his
suppliers, Tyrone Ellis, revealed many DDTO co-conspirators
that police had previously been unaware of as well as new
evidence regarding the organization’s criminal activities.
Overall, law enforcement intercepted and recorded
approximately 6,700 pertinent calls over the course of their
investigation.
In addition to these wiretaps, investigators obtained
critical information from Kareem Young, a member of the
DDTO. He eventually “flipped” and became a government
informant. Prior to cooperating with the government, Young
sold drugs for Derry, obtaining them directly from him.
Young explained the inner workings of the DDTO to
investigators, and he described the defendants’ roles in the
organization.
B. District Court Proceedings
A federal grand jury returned a fifteen-count
indictment against fifteen defendants, including the four in
5
this consolidated appeal. Thereafter, the grand jury returned a
125-count superseding indictment against nineteen
defendants, including these four defendants. The issues raised
in this appeal pertain to the following charges in that
indictment: (1) Conspiracy to Distribute and Possess with
Intent to Distribute Heroin within 1000 Feet of a Public
Housing Complex, in violation of 21 U.S.C. § 846, 21 U.S.C.
§ 841(a)(1) & (b)(1)(A), and 21 U.S.C. § 860 (drug
conspiracy count); (2) Use or Possession of a Firearm in
Furtherance of a Drug Trafficking Offense, in violation of 18
U.S.C. § 924(c)(1)(A)(iii) (firearm count); (3) Use of a
Communication Facility to Further a Drug Conspiracy, in
violation of 21 U.S.C. § 843(b) (phone count); and (4)
Possession of a Firearm by a Convicted Felon, in violation of
18 U.S.C. § 922(g)(1) (felon in possession count). While all
four defendants were charged in the first three of those
counts, only Terry Davis was charged in the fourth. The
indictment alleged that the charged conspiracy lasted “[f]rom
in or about October 2010 through in or about March 2013.”3
Given logistical hurdles arising from the number of
individuals indicted, the district court established three groups
of defendants who would be tried separately. The four
defendants here were among those joined in the first group to
be tried. All four were subsequently convicted on all counts
charged against them, except one phone count on which
Bailey was acquitted. Davis received an aggregate sentence of
240 months’ imprisonment in accordance with the applicable
mandatory minimums. Venable was sentenced to 240 months;
Bailey to 241 months; and Macon to 240 months.
Defendants now raise overlapping and individual
challenges to their convictions. They raise four principal
arguments. First, they contend that the government did not
present sufficient evidence to support the jury’s verdict.
Second, Bailey, Venable, and Macon argue that the district
court should have suppressed the evidence obtained through
the wiretaps. Third, they claim that the district court violated
Federal Rules of Evidence 404(b) and 403 when it permitted
the government to present evidence of a murder committed by
Mykal Derry’s brother, Malik Derry. Bailey and Macon also
argue that the district court violated Rule 403 when it
3
Appendix for Kareem Bailey (Bailey J.A.) at 2.
6
permitted the government to present evidence of another
drug-trafficking-related assault that DDTO members carried
out. Bailey further appeals the district court’s admission of
his prior convictions under Rules 404(b) and 403. Fourth and
finally, Venable, Bailey, and Macon claim there are three
different grounds for a mistrial that were erroneously denied.
For the reasons that follow, we hold that only one of the
defendants’ evidentiary challenges has any merit.
Nonetheless, the resulting error was harmless.4
II. SUFFICIENCY OF THE EVIDENCE CLAIM
A. The Heroin-Trafficking Conspiracy Charge
All four defendants contend that the evidence
presented at trial was insufficient to support their convictions
for membership in a heroin-trafficking conspiracy and use (or
possession) of a firearm in furtherance of that drug trafficking
conspiracy.5 To prove they were members of a drug-
trafficking conspiracy in violation of 21 U.S.C. § 846, the
government must establish: (1) a shared unity of purpose
between the alleged conspirators, (2) an intent to achieve a
common goal, and (3) an agreement to work together toward
that goal.6 We can infer such a conspiracy when evidence of
related facts and circumstances make clear that the defendants
could not have carried out their activities “‘except as the
result of a preconceived scheme or common
understanding.’”7 The government “need not prove that each
defendant knew all of the conspiracy’s details, goals, or other
participants.”8 Furthermore, the government is entitled to
prove these elements entirely through circumstantial
4
The district court had subject matter jurisdiction under 18
U.S.C. § 3231; we exercise jurisdiction pursuant to 28 U.S.C.
§ 1291.
5
They do not challenge their convictions for use of a
communication facility to further a drug conspiracy.
6
United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).
7
United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986)
(quoting United States v. Ellis, 595 F.3d 154, 160 (3d Cir.
1979)).
8
United States v. Perez, 280 F.3d 318, 343 (3d Cir. 2002)
(citing United States v. Theodoropoulos, 866 F.2d 587, 593
(3d Cir. 1989), overruled on other grounds by United States
v. Price, 13 F.3d 711, 727 (3d Cir. 1994)).
7
evidence.9 Indeed, “‘[i]t is not unusual that the government
will not have direct evidence. Knowledge is often proven by
circumstances. A case can be built against the defendant
grain-by-grain until the scale finally tips.’”10
In drug conspiracy cases, the government must prove
that the defendants were not merely engaged in “buyer-seller”
relationships with their suppliers.11 Instead, the government
must prove that the defendants were actually members of the
drug-trafficking conspiracy. We discussed the problem of
differentiating between one who merely buys drugs from a
drug conspiracy, and one who is an actual member of the
conspiracy, in United States v. Gibbs.12 Gibbs teaches that the
factors that demonstrate a defendant was part of a conspiracy
rather than in a mere buyer/seller relationship with that
conspiracy include: (1) “the length of affiliation between the
defendant and the conspiracy”; (2) “whether there is an
established method of payment”; (3) “the extent to which
transactions are standardized”; (4) “whether there is a
demonstrated level of mutual trust”; (5) whether “transactions
involved large amounts of drugs”; and (6) whether the
defendant purchased his drugs on credit.13 These factors do
not necessarily establish membership in a conspiracy as
opposed to a buyer-seller relationship, but “their presence
suggests that a defendant has full knowledge of, if not a stake
in, a conspiracy.”14 As we acknowledged in Gibbs:
[W]hen a defendant drug buyer has repeated,
familiar dealings with members of a conspiracy,
that buyer probably comprehends fully the
nature of the group with whom he is dealing, is
more likely to depend heavily on the conspiracy
as the sole source of his drugs, and is more
likely to perform drug-related acts for
9
Gibbs, 190 F.3d at 197 (citing United States v.
McGlory, 968 F.2d 309, 321 (3d Cir. 1992)).
10
United States v. Caraballo-Rodriguez, 726 F.3d 418, 431
(3d Cir. 2013) (en banc) (alteration in original) (quoting
United States v. Iafelice, 978 F.2d 92, 98 (3d Cir. 1992)).
11
Gibbs, 190 F.3d at 197.
12
Id. at 188.
13
Id. at 199.
14
Id.
8
conspiracy members in an effort to maintain his
connection to them.15
Of course, merely comprehending the nature of the group one
purchases from does not change a person who is otherwise
only a purchaser into a conspirator, and Gibbs does not hold
otherwise.16 Moreover, in Gibbs, Judge Becker also urged us
to consider “whether the buyer can be said to have a stake in
the larger conspiracy,” beyond the buyer/seller relationship.17
Our standard of review in sufficiency of the evidence
challenges is highly deferential.18 A sufficiency challenge
fails if, “‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’”19 In reviewing its sufficiency, the
evidence is “view[ed] . . . as a whole,”20 not piecemeal, and
we do “‘not weigh evidence or determine the credibility of
witnesses.’”21 Furthermore, when the facts support conflicting
inferences, we “must presume—even if it does not
affirmatively appear in the record—that the trier of fact
15
Id.
16
For example, one who regularly purchases his drugs from a
drug cartel fully understands the overarching nature of the
organization from which he purchases. However, that does
not ipso facto transform that purchaser into a co-conspirator.
There is clearly a distinction between knowing one is
purchasing from a cartel and having a shared interest in the
business of that cartel.
17
Id. at 198, n.3.
18
United States v. Centeno, 793 F.3d 378, 386 (3d Cir. 2015).
Our review of sufficiency of the evidence challenges is
plenary. See United States v. Bornman, 559 F.3d 150, 152 (3d
Cir. 2009).
19
Caraballo-Rodriguez, 726 F.3d at 424-25 (emphasis in
original) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
20
Centeno, 793 F.3d at 386.
21
Id. (quoting United States v. Gambone, 314 F.3d 163, 170
(3d Cir. 2003) (internal quotation marks omitted)).
9
resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.”22
We further clarified the application of this deferential
standard to drug conspiracy cases in a relatively recent en
banc decision, United States v. Caraballo-Rodriguez.23 There,
we emphasized that in “a sufficiency of the evidence
challenge in [a] drug conspiracy case[],” we are “not to act as
a thirteenth juror.”24 We further admonished that “in this
particular area—drug conspiracy cases—it appears that we
[too frequently] examined sufficiency by looking at the
evidence under a microscope.”25 Such inspection is not
warranted: “Too often, we failed to ask whether any
reasonable juror could conclude that the defendant knew the
transaction involved drugs; instead, we reassessed the
evidence independently.”26 In closing, we stressed:
While evidence proffered at trial may be
consistent with multiple possibilities, our role as
a reviewing court is to uphold the jury verdict—
and not to usurp the role of the jury—as long as
it passes the “bare rationality” test. Reversing
the jury’s conclusion simply because another
inference is possible—or even equally
plausible—is inconsistent with the proper
inquiry for review of sufficiency of the
evidence challenges . . . . It is up to the jury—
not the district court judge or our Court—to
examine the evidence and draw inferences.27
The defendants must therefore clear a high hurdle to prevail
on their challenge to the sufficiency of the evidence.
Here, there is considerable evidence that the DDTO
was a drug trafficking organization, of which each of the
defendants was a member. Kareem Young testified that Derry
sold him and other DDTO associates bricks of heroin, some
22
McDaniel v. Brown, 558 U.S. 120, 133 (2010) (internal
quotation marks omitted).
23
726 F.3d 418 (3d Cir. 2013) (en banc).
24
Id. at 431.
25
Id.
26
Id. at 432.
27
Id.
10
of which Young paid for upon delivery and some of which he
obtained on credit. Young explained that he and other DDTO
associates stored heroin and guns inside trap houses that they
operated at the Stanley Holmes Village apartments. He also
stated that if a rival drug dealer attempted to sell heroin on
DDTO “turf,” DDTO associates would beat, rob, and/or shoot
the invader.
Regarding the four defendants here, Young first
testified that Derry provided heroin to Macon from 2011
through 2013, and Macon resold the heroin in Atlantic City
on a daily basis. Young also stated that Derry sold Macon
heroin on credit. Wiretapped phone calls between Macon and
Derry corroborate this testimony. The wiretaps also captured
a conversation between Derry and Macon in which Macon
warned Derry about police surveillance. This fact suggests
that Macon had a stake in the continued viability of Derry’s
drug operation. Similarly, police recorded Macon directing
heroin customers to Derry. This evidence was more than
sufficient to establish that Macon had an interest in the Derry
conspiracy and, thus, was a member of it.
The evidence also established Davis was a member. In
fact, Davis served as an “enforcer” for the group. Davis
carried firearms to protect DDTO associates during heroin
sales. Young testified that Derry delivered heroin to Davis for
redistribution, occasionally providing it on credit. Intercepted
conversations corroborated Young’s testimony against Davis.
The prosecution also presented other examples of Davis’s
active membership in the DDTO. These examples included
recorded conversations about an incident in which Davis
rented a hide-away room at the Trump Taj Mahal Casino for
Derry after Derry and his brother Malik murdered a member
of a rival gang. This evidence was enough to allow a
reasonable jury to conclude that Derry and Davis had a shared
interest in the success of the DDTO.
Venable’s attempt to distance himself from
membership in the DDTO fares no better. Young recounted
that Derry sold heroin to Venable in 2011 and 2012,
occasionally providing it to him on credit. Moreover, Venable
conceded in his brief that “direct proof . . . of Venable’s
membership in the conspiracy”28 came from Young. The
28
Venable Br. at 23.
11
government also corroborated Young’s testimony with
intercepted phone conversations, including one in which
Derry instructed Venable to go to the bathroom of a
McDonald’s restaurant in Atlantic City and sell heroin to a
customer there. Like Macon, Venable referred heroin
customers to Derry so that Derry could make the sale himself.
The government also presented sufficient evidence of
Bailey’s membership in the DDTO drug conspiracy.
Recorded calls revealed Bailey setting up sales for Derry.
Bailey, like Macon, also acted as a lookout for the DDTO.
Lastly, the evidence included recorded conversations between
Derry and Bailey in which the two discussed collecting
money from other DDTO associates so that they could post
bail for Davis and another DDTO co-conspirator.
This evidence establishes several important Gibbs
factors. First, as Gibbs teaches, “[a] large transaction or an
accumulation of deals suggests more trust, garnered over a
period of time, as well as a greater likelihood that the parties
have ‘put their heads together’ to figure out planning,
organization, and ways to conceal their activities.”29
The fact that Macon and Davis obtained heroin from
Derry on credit with some regularity further shows the
trusting and continuing nature of the relationship between
them. This trust is indicative of membership in a conspiracy
rather than merely purchasing from it.
A credit relationship may well reflect the kind
of trust that is referenced supra, and often
evidences the parties’ mutual stake in each
other’s transactions. By extending credit to a
buyer, the seller risks the possibility that the
buyer will be unable to resell the drugs: even if
the buyer does successfully resell the drugs, in
this generally thinly capitalized “business,” the
seller will likely have to wait until the buyer
collects the money from his resale before he can
pay the seller back for the initial purchase. In
addition, the buyer has a vested interest in the
seller’s ability to maintain a good working
relationship with his supplier, since the buyer
29
United States v. Gibbs, 190 F.3d 188, 199 (3d Cir. 1999).
12
will not profit unless the drugs continue to flow
from the seller's supplier to the seller.30
The fact that Bailey, Macon, and Davis occasionally
advanced the DDTO by serving as lookouts are also
indicative of membership in the conspiracy. We have
explained that when a defendant “acted as a lookout [while an
alleged coconspirator] conducted drug sales, [] that fact alone
may well have been enough to show the existence of a
conspiracy between” those persons.31
Accordingly, it is abundantly clear that all four of
these defendants had a stake in the DDTO organization and
actively worked to advance the goals of that organization;
these were goals from which each of these defendants shared
and benefitted. This evidence is clearly sufficient to establish
each of the defendants’ membership in the charged
conspiracy beyond a reasonable doubt, and their protestations
to the contrary are unpersuasive.32
B. The Firearm Possession Charge
The defendants further claim that the evidence was
insufficient to prove that they possessed, carried, or used
firearms in furtherance of the heroin-trafficking conspiracy.
This argument is only slightly better than their claim that the
evidence was not sufficient to establish their membership in
the DDTO conspiracy. To prove the firearms charge, the
government had to prove that:
(1) the defendant committed either the crime of
conspiracy to distribute and possess with intent
to distribute a controlled substance or the crime
of possession with intent to distribute; (2) the
defendant knowingly possessed a firearm; and
(3) the defendant knowingly possessed the
firearm in furtherance of the crime of
30
Id. at 200.
31
United States v. Pressler, 256 F.3d 144, 155 (3d Cir. 2001).
32
The fact that much of the evidence of the defendants’
participation in the conspiracy came from one co-conspirator
does not undermine our conclusion. See United States v.
Boria, 592 F.3d 476 (3d Cir. 2010).
13
conspiracy to distribute or in furtherance of the
crime of possession with intent to distribute.33
However, since the government charged a conspiracy,
it need not prove that each defendant himself personally used
a firearm in furtherance of the conspiracy. Instead, under
Pinkerton v. United States,34 each member of the charged
conspiracy is liable for the substantive crimes his co-
conspirators commit in furtherance of the conspiracy even if
he neither participates in his co-conspirators’ crimes nor has
any knowledge of them, absent the following three exceptions
to that rule.35 A defendant may not be held liable for the
offenses of his co-conspirators if: (1) “the substantive offense
committed by one of the conspirators was not in fact done in
furtherance of the conspiracy,”36 (2) the substantive offense
committed by one of the conspirators “did not fall within the
scope of the unlawful project,”37 or (3) the substantive
offense committed by one of the conspirators “could not be
reasonably foreseen as a necessary or natural consequence of
the unlawful agreement.”38
Here, the government introduced considerable
evidence of the DDTO’s profligate use of firearms to further
the common interests of the conspirators. Young testified that
the DDTO associates engaged in numerous shootings,
targeting rival drug dealers and former DDTO associates in
an effort to maintain DDTO control over the drug-trafficking
trade in the Stanley Holmes area. For example, Young
explained that Derry and another DDTO associate assaulted a
former DDTO associate named Anthony Rosario after
Rosario stopped buying heroin from Derry. After Rosario
reported the assault to the police, Derry ordered his cousin to
shoot Rosario.
The government introduced evidence that Macon,
Davis, Venable, and Bailey either committed the substantive
33
United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006).
34
328 U.S. 640 (1946).
35
United States v. Gonzalez, 918 F.2d 1129, 1135 (3d Cir.
1990) (citing Pinkerton).
36
Pinkerton, 328 U.S. at 647.
37
Id. at 647-48.
38
Id. at 648.
14
crime of possession in furtherance of a drug-trafficking
conspiracy or else met Pinkerton’s standard for co-
conspirator liability. As previously explained, “As long as [a
conspirator’s] action was within the purview of the
conspiracy, his co-conspirators are as liable for his gun as if
they had carried the firearm themselves.”39
Young told the jury that when he and Macon were
selling heroin one night in the Stanley Holmes Village,
Macon asked Young if he was “strapped” (i.e. armed), and
Young assured Macon that he was. Macon also spent time in
DDTO trap houses where firearms were openly displayed.
Young further explained that he repeatedly saw Davis
carrying guns, and that Davis was an “enforcer” for the
DDTO. Law enforcement also intercepted conversations
between Davis and another DDTO associate regarding a
shooting that a DDTO associate carried out against rival drug
dealers.
According to Young, Venable regularly carried a
loaded .22 caliber rifle with a sawed-off barrel to shoot at
rival drug dealers. The police seized a sawed-off, .22 caliber
rifle from Venable, thus corroborating Young’s testimony.
Moreover, Young testified that Venable admitted that he was
involved in a shooting on rival drug turf. The presence of a
discharged .22 caliber shell casing found at the scene of the
shooting corroborated this testimony.
Young testified that Bailey possessed “firearms at
times while he was selling drugs or engaged in the business of
selling drugs in and around” the Stanley Holmes Village and
other locations. After Bailey was arrested, Derry told Bailey
that he was glad that Bailey “wasn’t strapped” when he was
arrested, and Bailey acknowledged his ownership of a gun
(“my joint”).
39
United States v. Gonzalez, 918 F.2d 1129, 1135 (3d Cir.
1990) (stating that the evidence was sufficient to prove that a
coconspirator’s “use of his weapon was both foreseeable to . .
. [his co-conspirator] . . . and within the scope of the
conspiracy”); see United States v. Casiano, 113 F.3d 420, 427
(3d Cir. 1997) (“[T]here was sufficient evidence that Casiano
could have reasonably foreseen the use of a gun by his co-
conspirators.”); United States v. Ramos, 147 F.3d 281, 286
(3d Cir. 1998) (same).
15
This evidence is sufficient to establish actual
possession of firearms in furtherance of drug-trafficking
activity. It is also more than enough proof that each defendant
conspired to possess them for that purpose. There was also
evidence that Davis, Venable, and Bailey carried firearms
during drug sales, supporting the inference that they relied on
these firearms to enforce and protect their drug business.
Venable even appears to have used his firearm in drug-related
shootings.
Even without this direct evidence, the government
produced sufficient evidence to prove that all four defendants
knew the DDTO used guns in furtherance of the drug
conspiracy. All four were aware of numerous drug-related
DDTO shootings, saw firearms in trap houses, and knew that
the DDTO used armed, i.e. “strapped,” enforcers.
III. THE WIRETAP EVIDENCE CHALLENGE
Bailey, Macon, and Venable claim that the government
failed to establish “necessity” for its wiretaps. Thus, they
contend that the district court erred in not suppressing the
evidentiary “fruits” of those wiretaps. According to the
defendants, the investigators obtained sufficient information
through “traditional investigative techniques,” such as
controlled purchases of heroin, physical surveillance, review
of telephone records, and confidential informants. The record
is to the contrary.
The team that investigated this case used nearly every
technique in the book before requesting authorization for a
wiretap. They ultimately applied for a wiretap only when it
became clear that the less invasive techniques they had been
using were not effective. Those methods did not disclose the
full scope of the DDTO’s conspiracy. We review the district
court’s approval of the wiretap application for clear error,
while exercising plenary review over its legal
determinations.40
The statute governing the authorization of wiretaps,
Title III,41 requires the government to demonstrate necessity
when applying for wiretap authorization. More specifically,
wiretap applications must contain “a full and complete
40
United States v. Thompson, 772 F.3d 752, 758 (3d Cir.
2014).
41
18 U.S.C. § 2518.
16
statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous.”42 The
purpose of the necessity requirement is “to make doubly sure
that the statutory authority be used with restraint and only
where the circumstances warrant the surreptitious interception
of wire and oral communications.”43 The Supreme Court has
emphasized that “[t]hese procedures [are] not to be routinely
employed as the initial step in criminal investigation.”44
A district court may approve a wiretap application
when the government demonstrates that “normal investigative
procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too
dangerous.”45 We have acknowledged that “18 U.S.C. §
2518(3)(c) does not require the government to exhaust all
other investigative procedures before resorting to electronic
surveillance.”46 “The government need only lay a factual
predicate sufficient to inform the judge why other methods of
investigation are not sufficient.”47 Ultimately, we apply the
necessity requirement in a “practical and common sense
fashion.”48
42
18 U.S.C. § 2518(1)(c).
43
United States v. Giordano, 416 U.S. 505, 515 (1974).
44
Id.
45
18 U.S.C. § 2518(3)(c).
46
United States v. Williams, 124 F.3d 411, 418 (3d Cir.
1997); see also United States v. Galloway, 749 F.3d 238, 243
(4th Cir. 2014) (observing that necessity was shown where
the affidavit described “at length the steps that police officers
had taken . . . in investigating” a drug-trafficking conspiracy,
“addressing at least ten alternative investigatory procedures,”
included “physical surveillance, analyzing telephone toll
records, and affixing GPS devices”; “those methods had
failed to reveal the full scope of the organization, showing
instead that members of this organization [were] extremely
cautious in their movements and activities” (alternation in
original) (internal quotation marks omitted)).
47
Id. (internal quotation marks omitted).
48
United States v. Armocida, 515 F.2d 29, 37 (3d Cir. 1975)
(internal quotation marks omitted).
17
Here, law enforcement either exhausted the normal
investigative techniques available to them or else reasonably
concluded that such procedures were unlikely to succeed if
tried. The affidavit in support of the wiretaps lays this out in
exhaustive detail. The investigators first recruited confidential
informants who made controlled purchases of heroin from
Derry and other DDTO associates. Investigators used
physical surveillance of most of the controlled purchases of
heroin from Derry. Investigators also obtained information
from recorded prison telephones involving incarcerated
DDTO associates.
These techniques proved to be insufficient. The
confidential informants bought heroin almost exclusively
from Derry and did not “know all” of his confederates. They
also could not ascertain the DDTO’s “method(s) or source(s)
of supply, nor locations used for storage, packaging or
distribution.”49 Investigators “believed that if [Derry] was
arrested for” selling heroin, the DDTO “would continue to
distribute narcotics, and continue to engage in violence.”50
Thus, arresting Derry alone would have frustrated the goals of
the broader investigation.
Law enforcement further determined that other, less
invasive investigative techniques would also fail to reveal the
full scope of the DDTO’s operations. Continued physical
surveillance was likely to be fruitless because most of the
associates were surveillance conscious, avoiding locations
that were visible to security cameras. They were also
occasionally aware of surveillance vehicles when they were
present (some of these defendants even alerted each other to
the presence of surveillance vehicles). Investigators also
determined that searches of the targets’ trash would provide
little relevant evidence because trash at the Stanley Holmes
Village was thrown into communal dumpsters and could not
be attributed to particular tenants.
Law enforcement also decided that the execution of
search warrants would be futile because such searches would
alert DDTO associates to the existence of the investigation,
thereby leading to the concealment or destruction of evidence
before police could identify all drug stash locations.
49
Supplemental Appendix 694 (Affidavit ¶ 92).
50
Supplemental Appendix 698 (Affidavit ¶ 102).
18
Additionally, execution of search warrants “in and of
themselves, would [not] meet the goals and objectives of this
investigation” because the “[e]vidence seized would only
implicate the individual directly associated with the
respective property[] and not the entire organization.”51 And
perhaps most importantly, the investigators determined that
DDTO associates were unlikely to cooperate with law
enforcement officials due, in large part, to the threat of
retribution.
As the government explained in its affidavit, Derry
largely conducted his business over cell phones, using seven
different mobile telephones an average of 205 times per day.
In a final attempt to avoid applying for wiretap authorization,
investigators first obtained judicial approval to install pen
registers and trap-and-trace devices as well as collect global
positioning satellite information on Derry’s mobile
telephones. These devices enabled officers to track Derry’s
location and contacts without allowing them to listen to the
substance of his calls. However, police were still unable to
ascertain the identities of the people speaking to Derry on the
phone. It was therefore necessary for the government to
obtain more precise information regarding Derry’s cell phone
use.
Moreover, as the government explains in its brief, the
“value of historical telephone usage information was limited
by the fact that targets occasionally used ‘pre-paid’
telephones or ‘drop phones’―for which service providers
were not required to maintain subscriber information―or
used fictitious names to subscribe for telephone service.”52
Furthermore, although the GPS data informed police when
targets were at particular locations, investigators could not
prove they were engaged in criminal activity. Thus, over two
years into the investigation, law enforcement applied for and
received wiretap authorization. The government’s wiretap
affidavit detailed each of the investigative steps law
enforcement had previously attempted and explained with
precision why other techniques would prove fruitless.
51
Supplemental Appendix 702 (Affidavit ¶ 114).
52
Gov’t Br. at 53 (citing Supplemental Appendix 710-11
(Affidavit ¶¶ 130, 132)).
19
Far from being inadequate to justify authorization of a
wiretap, the government’s application here is a textbook
model of care and thoroughness, and the individuals who
prepared it are to be commended. With meticulous and
painstaking care, they clearly explained the government’s
need for the wiretap authorization and why, absent that
information, the government would only be able to arrest
Derry and a few other key DDTO associates. As we have
previously explained, even where “normal investigative
techniques might have been sufficient to implicate” the
conspiracy leader in drug trafficking, “such approaches” are
sometimes insufficient to determine “the scope of the
conspiracy or the nature of [the conspiracy leader’s] on-going
criminal activity.”53 Investigations are not limited “to crimes
which can be probed satisfactorily by normal methods.”54
Instead, “[i]n the proper circumstances, the instrumentalities
of Title III may be employed to discover the full extent of
crimes and conspiracies.”55
In United States v. Armocida,56 we explained that
“[a]lthough the government ha[d] actual knowledge of a
conspiracy and evidence sufficient to prosecute one of the
conspirators, it [would have been] unrealistic to require the
termination of an investigation before the entire scope of the
narcotics distribution network [was] uncovered and the
identity of its participants learned.”57 The same is true here.
The government established that a wiretap was necessary to
uncover the full scope of the DDTO’s operation, despite the
fact that law enforcement had enough evidence without it to
arrest Mykal Derry.
Moreover, as previously explained, the government
was not required to show that all other investigative methods
would have been ineffective (even though the government
appears to have made such a showing here). “It is sufficient
that the government show that other techniques are
impractical under the circumstances and that it would be
unreasonable to require pursuit of those avenues of
53
United States v. Vento, 533 F.2d 838, 850 (3d Cir. 1976).
54
Id.
55
Id.
56
515 F.2d 29 (3d Cir. 1975).
57
Id. at 38.
20
investigation.”58 As long as the wiretap affidavit is prepared
in detail, recounting the investigative methods that were
attempted and why other methods would prove ineffective, as
they were here, we have no difficulty concluding that the
district court did not abuse its discretion in determining that
the affidavit supported a finding of necessity.
IV. RULE 403 AND 404(B) CLAIMS
A. Evidence of the James Murder
The district court permitted the government to present
evidence that Mykal Derry and his brother Malik murdered a
rival heroin trafficker named Tyquinn James for selling drugs
on their turf. The evidence was admitted to prove the firearm
and drug trafficking conspiracy charges.
On February 10, 2013, Malik Derry shot Tyquinn
James at extremely close range outside a populated fast food
restaurant and liquor store in Atlantic City. A security camera
outside the restaurant partially captured the murder on video.
At trial, the district court permitted the government to present
both the video recording of this murder as well as non-video
evidence—testimony and recorded conversations—discussing
the murder. Davis, Bailey, Macon, and Venable argue that the
district court erred in admitting both the video and non-video
evidence of the James murder under Federal Rule of Evidence
403. Davis also argues that the evidence was inadmissible
under Federal Rule of Evidence 404(b).
We conclude that the district court did not err in
admitting the non-video evidence of the James murder. Given
the nature of the charged conspiracy, that evidence was more
probative than prejudicial and therefore admissible under
Rule 403. However, we are extremely troubled by the district
court’s decision to allow the surveillance video of that
shooting into evidence. The video depicted a brutal murder; it
was not necessary to establish the government’s stated
purpose in seeking its admission, and the probative value of
this video—if any—was vastly outweighed by the significant
risk of undue prejudice and emotion it most likely stimulated
in the jury. As we shall explain, the district court should not
have admitted this tape into evidence. Nevertheless, even
though we are disturbed by this error and the prosecution’s
tactic, given the plethora of evidence of guilt of each of these
58
Vento, 533 F.2d at 849.
21
defendants, we hold that this error was harmless. We address
each of these issues in turn, beginning with the non-video
evidence.
1. The Non-Video James Murder Evidence
i. Standard of Review
We generally review a district court’s evidentiary
findings for abuse of discretion.59 This standard requires us to
afford district courts “broad discretion on evidentiary rulings”
due to their “familiarity with the details” of the cases in front
of them and their “greater experience in evidentiary
matters.”60 “In order to justify reversal, a district court’s
analysis and resulting conclusion must be arbitrary or
irrational.”61 Nevertheless, when reviewing a district court’s
admission of evidence under Federal Rule of Evidence 403,
we do not afford that court the deference normally afforded
when we review for abuse of discretion if the district court
failed to engage in on-the-record balancing.
Rule 403 states: “The court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative
evidence.”62 When determining whether evidence violates
Rule 403, district courts must balance the probative value of
the evidence against its prejudicial effect, clarifying its
reasoning on-the-record.63 This requirement not only provides
59
United States v. Schneider, 801 F.3d 186, 197 (3d Cir.
2015).
60
United States v. Finley, 726 F.3d 483, 491 (3d Cir. 2013)
(internal quotation marks omitted).
61
Schneider, 801 F.3d at 198 (internal alternations omitted)
(internal quotation marks omitted).
62
Fed. R. Evid. 403.
63
See United States v. Caldwell, 760 F.3d 267, 283-84 (3d
Cir. 2014), reh’g denied (Sept. 16, 2014); United States v.
Smith, 725 F.3d 340, 348 (3d Cir. 2013) (explaining that the
district court’s balancing must be apparent from the record);
United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992)
(“When a court engages in a Rule 403 balancing and
articulates on the record a rational explanation, we will rarely
disturb its ruling. Where, however, the court failed to perform
22
the defendants with an explanation of the district court’s
reasoning, but also enables appellate courts to understand the
district court’s logic. If a district court does not conduct this
on-the-record balancing, we either remand the case to the
district court or, where practical, undertake this balancing
ourselves.64
Here, Davis contends that the district court abused its
discretion because it failed to conduct the requisite on-the-
record balancing with respect to the video evidence of the
James murder. Although Davis does not raise this argument
with respect to the non-video evidence, we will address this
point with respect to all evidence of the James murder as it
dictates the degree of deference we must afford the district
court’s decision. We conclude that the district court
articulated sufficient reasons, on-the-record, for admitting the
non-video evidence of the James murder.
At trial, both parties briefed the Rule 403 issue with
respect to both testimonial and video evidence, and the
this analysis, or where its rationale is not apparent from the
record, there is no way to review its discretion.” (internal
citation omitted)).
64
See United States v. Cunningham, 694 F.3d 372, 388-91
(3d Cir. 2012) (holding that the district court’s “underlying
Rule 403 determination [was] not entitled to the full range of
deference that we would normally give to it on appeal,” and
then conducting our own Rule 403 analysis); United States v.
Murray, 103 F.3d 310, 318-19 (3d Cir. 1997) (“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.”). When a district court fails to
conduct the appropriate balancing, that omission does not per
se necessitate reversal and remand. See United States v.
Eufrasio, 935 F.2d 553, 572 (3d Cir. 1991) (“Either way, the
trial court’s failure to expressly articulate a Rule 403 balance
when faced with a Rule 403 objection, would not be
reversible error per se.”). Our Court can conduct the
necessary balancing if the record provides the information
needed for that determination. See Cunningham, 694 F.3d at
388-91.
23
district court heard argument on the issues. The court then
conducted the necessary balancing with respect to the non-
video evidence. First, the district court acknowledged that the
evidence was prejudicial, but only in the way that all
probative evidence is prejudicial. The court then rejected the
defendants’ argument that the non-video evidence of the
James murder was cumulative of other documentation of the
DDTO’s drug-related violence. The court reasoned that
nothing about this evidence was unfairly prejudicial and
rejected the defendants’ Rule 403 argument. The district court
considered a number of relevant factors in conducting its on-
the-record balancing. The balancing inquiry convinced the
court that the testimonial and wiretapping evidence of the
James murder should be admitted. Accordingly, we review
that decision only for an abuse of discretion. We must
therefore determine whether “‘the district court’s action was
arbitrary, fanciful or clearly unreasonable,’ and ‘we will not
disturb a trial court’s exercise of discretion unless no
reasonable person would adopt the district court’s view.’”65
ii. Admissibility of the Non-Video Evidence under Rule 403
We now turn to the merits of the district court’s Rule
403 ruling as to the non-video evidence of the James murder.
As previously stated, under Rule 403, a court may “exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
cumulative evidence.”66 “When weighing the Rule 403
factors, courts ‘must appraise the genuine need for the
challenged evidence and balance that necessity against the
65
United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)
(internal alterations omitted) (quoting Ansell v. Green Acres
Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003)).
66
Fed. R. Evid. 403; see United States v. Universal Rehab.
Servs. (PA), Inc., 205 F.3d 657, 664 (3d Cir. 2000) (en banc)
(“As the text of [Rule 403] indicates, evidence that is
otherwise relevant and admissible may only be excluded if
the probative value of the evidence is substantially
outweighed by its prejudicial effect.”).
24
risk of prejudice to the defendant.’”67 “Evidence cannot be
excluded under Rule 403 merely because its unfairly
prejudicial effect is greater than its probative value. Rather,
evidence can be kept out only if its unfairly prejudicial effect
‘substantially outweigh[s]’ its probative value.”68 Moreover,
when evidence is highly probative, “even a large risk of
unfair prejudice may be tolerable.”69 The converse is also
true. When the probative value of evidence is tenuous, a
relatively minor risk of substantial undue prejudice should
counsel against admitting it.
The evidence of the James murder was highly
probative to the firearms charge. As previously explained, the
government had to prove either that each defendant conspired
to traffic heroin and knowingly possessed firearms in
furtherance of that conspiracy70 or that their co-conspirators’
use of firearms in furtherance of the conspiracy was
foreseeable under Pinkerton.71 At trial, the government
argued that Derry and his brother killed James to eliminate
competition with their drug-trafficking conspiracy. The
government also proved that some of these defendants helped
Derry hide from the authorities after the shooting.
Accordingly, evidence of this murder—and the defendants’
knowledge of it—was very relevant to establishing whether
use or possession of firearms in furtherance of the DDTO was
reasonably foreseeable. Testimony about the murder was also
highly probative of the defendants’ guilt of the charged
firearm offense.72 Indeed, counsel for one of the defendants
even conceded this fact in his brief.
67
United States v. Claxton, 766 F.3d 280, 302 (3d Cir. 2014)
(quoting Gov’t of Virgin Islands v. Archibald, 987 F.2d 180,
186 (3d Cir. 1993) (internal quotation marks omitted)).
68
United States v. Cross, 308 F.3d 308, 323 (3d Cir. 2002)
(quoting Fed. R. Evid. 403); see Claxton, 766 F.3d at 302
(quoting Cross).
69
Cross, 308 F.3d at 323; see Claxton, 766 F.3d at 302
(quoting Cross).
70
United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006).
71
Pinkerton v. United States, 328 U.S. 640, 646-48 (1946).
72
See United States v. Jones, 566 F.3d 353, 365 n.5 (3d Cir.
2009) (holding that evidence of gang related shootings was
relevant to the charged conspiracy because they “tended to
25
The defendants nonetheless argue that the danger of
unfair prejudice associated with this evidence outweighed its
probative value. They point out that they offered a trial
stipulation that DDTO associates murdered James. However,
we have repeatedly acknowledged the Supreme Court’s
canonical directive in Old Chief v. United States.73 There, the
Court explained that the government is “entitled to prove its
case free from any defendant’s option to stipulate the
evidence away.”74 “That rule ‘rests on good sense’ because
‘[a] syllogism is not a story, and a naked proposition in a
courtroom may be no match for the robust evidence that
would be used to prove it.’”75
Moreover, if the government uses testimony or
other tangible evidence to describe a series of
events, but then interrupts that pattern by
“announcing a stipulation or admission, the
effect may be like saying, ‘never mind what’s
behind the door,’ and jurors may well wonder
what they are being kept from knowing,” or
whether the government is “responsible for
cloaking something.”76
Thus, the government was entitled to present evidence of the
James murder to the jury through testimony, rather than by
stipulation.
Defendants also argue that evidence of the James
murder was cumulative because evidence pertaining to other
DDTO shootings was presented at trial. But Old Chief also
teaches that “the mere fact that two pieces of evidence might
show the gang’s hierarchal structure and expectations that
lower-ranking members, . . . carry out the violent acts of
retaliation, including murder, against other gangs to ensure
one’s position within the Bloods, solidify its violent
reputation, and protect its drug-distribution territory from
rival gangs, among other things”).
73
519 U.S. 172, 189 (1997).
74
Id.; see United States v. Cunningham, 694 F.3d 372, 387-88
(3d Cir. 2012).
75
Cunningham, 694 F.3d at 387 (quoting Old Chief, 519 U.S.
at 189).
76
Id. at 388 (quoting Old Chief, 519 U.S. at 189).
26
go to the same point would not . . . necessarily mean that only
one of them might come in.”77 The fact that the government
placed into evidence other examples of the DDTO’s violent
offenses is certainly relevant to the Rule 403 balancing.
However, such evidentiary submissions did not automatically
foreclose the prosecution from eliciting testimony about the
James murder. To counsel’s credit, Davis actually concedes
this point.
The government stipulated to the fact that none of the
defendants here actually murdered or plotted to murder
James. Indeed, the government took pains to prove that Derry
and his brother committed this murder. As we explained in
United States v. Jones,78 such a stipulation mitigates the
danger of unfair prejudice. In Jones, the government tried a
gang member for conspiracy to commit murder and attempted
murder. There, as here, the government introduced evidence
that other gang members—not on trial—committed violent
acts, including shootings.79 The defendant argued that
evidence of other gang members’ violent crimes was more
prejudicial than probative.80 In rejecting the defendant’s
claim, we emphasized that there had not been any suggestion
that the defendant had actually committed these crimes.81 The
same is true here. Not only was there no suggestion that any
of these defendants were implicated in the James murder, but
also there was a stipulation to the contrary. Accordingly, we
cannot conclude that the district court abused its discretion in
admitting the testimonial evidence of the James murder
pursuant to Rule 403.
2. The Video Evidence of the James Murder
i. Standard of Review
In contrast to its treatment of the non-video evidence,
the district court failed to conduct the requisite Rule 403 on-
the-record balancing with respect to the video of the James
murder. Had it done so, it is difficult to see how it could have
concluded that the probative value of this video outweighed
its prejudicial impact.
77
Old Chief, 519 U.S. at 183.
78
566 F.3d 353, 363-65 (3d Cir. 2009).
79
Id. at 364-65.
80
Id.
81
Id. at 365.
27
The extent of the district court’s balancing regarding
this piece of evidence was an off-handed and rather casual
remark that the video of James being shot in the head at point
blank range “wasn’t very graphic.”82 With that comment, the
district court concluded that the video evidence would be
admitted. For reasons known only to the court, the judge
added that the admission of this evidence would give the
defendants “an appeal issue.”83 The court was right.
We have stated numerous times that a district court
must provide a statement of reasons, on-the-record,
explaining why it is admitting evidence over a Rule 403
objection. In United States v. Caldwell,84 we explained that
district courts must engage in “more than a bare recitation of
Rule 403.”85 In Caldwell, the district court admitted evidence
under Rule 403 after simply stating that the evidence in
question was “more probative than prejudicial,” and
accordingly its “probative value outweighs any prejudicial
effect.”86 As we explained there, such a mantra-like recitation
of the rule is no substitute for a specific explanation of why
the evidence is admissible. “[W]e cannot infer such a
‘rational explanation’ where the court merely recites the text
of the rule.”87
Here, the district court failed to discuss the probative
value of this evidence or even acknowledge the video’s
potential for prejudice. Instead, the district court merely
82
It may be that what is “graphic” is in the eye and furtive
imagination of the beholder. This video was in black and
white, and the resolution did not approach a high definition
color video. However, an image of a person being gunned
down on a sidewalk does not have to be shot in high
definition, 3D, or virtual reality to be graphic. The absence of
color and blood only slightly mitigates the gruesome nature of
a life being instantly snuffed out on the sidewalk.
83
“Why don’t you let it in so you have an appeal issue[?]”
Bailey J.A. 2083.
84
760 F.3d 267, 284 (3d Cir. 2014), reh’g denied (Sept. 16,
2014).
85
Id.
86
Id. (quoting the district court below).
87
Id. (quoting United States v. Sampson, 980 F.2d 883, 889
(3d Cir. 1992)).
28
recited the text of Rule 403 and concluded that the evidence
was admissible—exactly what Caldwell prohibits. Because
the district court’s “rationale is not apparent from the record,”
we have “no way to review its discretion.”88 Therefore, we
will not afford the district court’s decision the deference of
abuse of discretion review.
ii. Admissibility of the Video Evidence under Rule 403
In contrast to the non-video evidence, it is clear that
the district court should not have admitted the video of the
James murder. This video had a substantially greater risk of
unfair prejudice than the testimonial and wiretap evidence
because it graphically depicts what can only be described as a
cold-blooded murder. The video shows James standing in
front of a populated restaurant as Malik Derry rides up on a
bicycle, draws his gun, and shoots James in the head at point
blank range. Malik then casually rides away as James
crumples and collapses to the ground. A child leaves the
restaurant, staring at James’ body, as another passerby
appears to call the police. Although no blood is visible in the
video, it is nonetheless highly disturbing. As the government
repeatedly emphasized in oral argument, the video depicts a
ruthless murder, carried out by someone with no regard for
human life. It is difficult to understand how the emotional
impact of this video would not unfairly prejudice the jury
against members of the DDTO.
Nonetheless, as we just explained, we will not disturb
the district court’s determination unless the danger of unfair
prejudice substantially outweighs the probative value of
evidence. We have little trouble concluding that it does. The
government introduced abundant evidence to prove the James
murder and its relationship to the charged drug conspiracy via
recorded telephone conversations and testimony at trial. This
video was not merely cumulative, it was a graphic depiction
of an event that had already been thoroughly proven. This
court89 and other circuit courts90 have clarified that probative
88
Sampson, 980 F.2d at 889.
89
See Cunningham, 694 F.3d at 389-91.
90
See United States v. Wiggan, 700 F.3d 1204, 1214 (9th Cir.
2012) (excluding evidence under Rule 403 where much of
that evidence “was available in other forms—by alternative
29
value is “informed by the availability of alternative means to
present similar evidence.”91 In Old Chief, the Supreme Court
advised that the “Rule 403 ‘probative value’ of an item of
evidence . . . may be calculated by comparing evidentiary
alternatives.”92 As the Seventh and Ninth Circuits have
recognized, “[t]here may be cases where the probative value
of the evidence is so minimal that it will be obvious to the
court that the potential prejudice to the defendant
substantially outweighs any probative value the evidence
might have.”93 This appeal presents such a case. The
government had alternate, less prejudicial ways of presenting
the James murder. This other evidence substantially reduced
the probative value of the James video.
We explained this concept in United States v.
Cunningham.94 That case involved the admission of
cumulative evidence in the form of videos. The videos at
issue depicted pre-pubescent children being bound, raped, and
violently assaulted.95 The district court admitted two videos
composed of seven shorter clips as proof of the child
pornography charges, holding that these videos were more
means—without risking the dangers of unfairness that use of
a grand juror’s testimony would present”); United States v.
Awadallah, 436 F.3d 125, 132 (2d Cir. 2006) (noting that
probative value is “informed by the availability of alternative
means to present similar evidence”); Gross v. Black & Decker
(U.S.), Inc., 695 F.2d 858, 863 (5th Cir. 1983) (explaining
that a factor to be taken into consideration in measuring
admissibility of potentially prejudicial evidence is whether
the same fact could have been proven by other evidence).
91
Awadallah, 436 F.3d at 132.
92
Old Chief v. United States, 519 U.S. 172, 184 (1997).
93
United States v. Loughry, 660 F.3d 965, 971 (7th Cir. 2011)
(citing United States v. Gonzalez–Flores, 418 F.3d 1093,
1098 (9th Cir. 2005) (“Where the evidence is of very slight (if
any) probative value, it’s an abuse of discretion to admit it if
there’s even a modest likelihood of unfair prejudice or a small
risk of misleading the jury.” (internal quotation marks
omitted))).
94
694 F.3d 372 (3d Cir. 2012).
95
Id. at 381-82, 390.
30
probative than prejudicial under Rule 403.96 Critically, the
district court admitted these videos despite the availability of
alternative means to prove the charged offense, including
“witness testimony, still images, shorter video clips, [his]
proffered stipulations, and/or the actual stipulations.”97 In
reversing, we explained:
Even though the two sets of videos were
probative, [] the law of diminishing marginal
returns still operates. The probative value of
each clip was reduced by the existence of the
clips before it. . . . As a result, after one excerpt
from each video was displayed, the probative
value of the remaining excerpts became
diminished because knowledge . . . had already
been established . . . by the prior video excerpts.
Thus, any of the three excerpts from the first
video would have diminished probative value if
one or two of the other video excerpts from the
first video had already been shown. Likewise,
any of the four excerpts from the second video
would have diminished probative value if one
or two of the other video excerpts from the
second video had already been shown. 98
We held that the video excerpts should have been excluded
because their “aggregate risk of unfair prejudice was
tremendous” while their probative value was low given the
availability of other evidence.99 Although “a district court ‘is
not required to scrub the trial clean of all evidence that may
have an emotional impact,’”100 Cunningham nonetheless
stands for the principle that this emotional impact outweighs
the probative value of evidence that is entirely redundant.
“[T]he more video excerpts were shown, the more it became a
96
Id. at 380.
97
Id. at 387 (internal quotation marks omitted).
98
Id. at 389-90.
99
Id. at 390.
100
Id. at 391 (quoting United States v. Ganoe, 538 F.3d 1117,
1124 (9th Cir. 2008)).
31
needless presentation of unfairly prejudicial and cumulative
evidence.”101
Here, the James video was entirely redundant. Its only
value lay in its emotional impact.102 The video had no
probative value apart from its capacity to prejudice the jury
against the defendants. When asked at oral argument what the
value of the video was apart from its prejudicial shock value,
the government repeatedly responded that the value of the
video was its shock value:
The Court: How does the fact that you see the
guy get it in the head and drop like a rock tell
you it’s this conspiracy?
The Government: Well it’s this conspiracy
because, there is other evidence that shows that
it’s this conspiracy.
The Court: Precisely. . . . Why did you need
the video? What did the video get you except
for the emotional wallop of seeing a guy go
down with a bullet going through his head?
The Government: What the video got, your
honor, is it showed how the murder was
committed in a way that no other evidence did.
It shows that it was committed brazenly, when
other people were standing around in a public
area. . . . Malik Derry rides up and brazenly
guns him down.103
In other words, the government argued that the video
allowed it to elicit the emotion that Rule 403 is designed to
prevent. As in Cunningham, “[w]e disagree with the
government’s contention . . . that [the] video [] needed to be
shown to ‘fully appreciate the nature of [the] crimes.’”104
Given the availability of other evidence of the exact same
101
Id.
102
We, of course, are not suggesting that the video would
have been properly admissible had the government refrained
from introducing the recorded conversations about the murder
or soliciting testimony about it from witnesses so that it could
argue for admission of the more graphic video.
103
Oral Argument at 33:00 minutes.
104
Cunningham, 694 F.3d at 391.
32
crime, the government did not need the James video to prove
the firearm or conspiracy charges.
It is hard to understand how the district court could
have concluded that the relatively insignificant probative
value of that video was not outweighed by its substantial
prejudicial effect. Although the Supreme Court’s proscription
in United States v. Berger105 is oft repeated, it seems all too
often to resemble the falling tree that no one hears. In Berger,
the Court unequivocally stated: “[The prosecutor] is in a
peculiar and very definite sense the servant of the law. . . . He
may prosecute with earnestness and vigor—indeed, he should
do so. But, while he may strike hard blows, he is not at liberty
to strike foul ones.”106 In other words, although ours is an
adversarial system, prosecutors should never allow their
overarching objective to be victory. “The United States
Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty . . . whose interest . . . in a
criminal prosecution is not that it shall win a case, but that
justice shall be done.”107 As the Supreme Court has warned,
the integrity of the criminal justice system is jeopardized
when prosecutors adopt tactics which are governed by the
sadly mistaken and dangerous principle that victory is the
primary objective of a criminal prosecution.
iii. Harmless Error Review
Our conclusion that the district court erred in admitting
the James video does not end our inquiry: we must still
review to see if the error was harmless. An evidentiary error
is harmless if “it is highly probable that the error did not
contribute to the judgment,”108 which “requires that the court
possess a sure conviction that the error did not prejudice the
defendant.”109
Here, we find that the district court’s erroneous
admission of the James video was harmless. As previously
described, the government presented abundant evidence of
105
295 U.S. 78, 88 (1935).
106
Id.
107
Id.
108
U.S. v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en
banc) (internal quotation marks omitted).
109
Id. at 1265 (internal quotation marks omitted).
33
the drug-trafficking conspiracy, the firearm charge, and the
defendants’ liability for each of these counts.110 Therefore, it
is “highly probable that the error did not contribute to the
judgment.”111
In concluding that this error was harmless under the
circumstances here, we caution that the doctrine of harmless
error is not a license to engage in whatever prejudicial
practices an attorney might feel he or she can get away with
because the harmless error analysis will inoculate the end
result against reversal on appeal.112
3. Rule 404(b) Analysis
Davis alone argues that evidence of the James murder
was extrinsic to the charged crimes and therefore subject to
Federal Rule of Evidence 404(b).113 Rule 404(b) provides that
“[e]vidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character.”114 Davis contends that the evidence of the James
110
Ironically, the video could easily have been excluded
under Rule 403 because it was so redundant given the other
evidence of the James murder.
111
Zehrbach, 47 F.3d at 1265.
112
Chief Judge McKee notes that he will begin naming
attorneys who engage in such tactics in his opinions in order
to deter such conduct. He hopes that this practice will stress
that harmless error review is not an invitation to resort to
unduly prejudicial tactics merely because the evidence is
strong enough to obtain a conviction that will likely be
immunized against reversal by the harmless error doctrine. He
invites his colleagues to do the same.
113
The James murder evidence is intrinsic to the conspiracy
and firearm charges. See infra Part IV.c.2. The murder of a
rival drug dealer who was encroaching on the DDTO’s turf
directly proves the charged crimes of drug-trafficking
conspiracy and use of a firearm in furtherance of that
conspiracy. However, we need not reach this issue. Even if
the murder evidence was extrinsic, Rule 404(b) only reaches
the bad acts of a defendant himself—not the bad acts of
others.
114
Fed. R. Evid. 404(b).
34
murder should have been excluded under Rule 404(b).
However, Rule 404(b) only applies to evidence of a
defendant’s other bad acts or crimes, not those of third
parties. In Huddleston v. United States,115 the Supreme Court
explained, “[i]n the Rule 404(b) context, similar act evidence
is relevant only if the jury can reasonably conclude that the
act occurred and that the defendant was the actor.”116 The
government stipulated that Davis did not commit the James
murder. Accordingly, Rule 404(b) simply does not apply. 117
B. The Rosario Assault
In addition to the evidence of the James murder, the
government presented evidence that DDTO associates
assaulted a former member of the organization named
Anthony Rosario. Rosario was a trafficker who obtained
heroin from Mykal Derry until they had a falling out. When
Rosario stopped buying heroin from Derry, Derry and another
DDTO associate kidnapped Rosario, stole his car, and
assaulted him. This assault occurred on October 30, 2010.
When Rosario and his mother reported the kidnapping and
assault to the police, Derry had his cousin, Kevin
Washington, shoot Rosario on April 17, 2011, paralyzing
him. The district court permitted the government to present
evidence of this assault at trial over the appellants’ Rule 403
objection.
115
485 U.S. 681, 689 (1988).
116
Id. (emphasis added).
117
See id.; see also United States v. Brady, 26 F.3d 282, 287
(2d Cir. 1994) (“Neither Montano, Brady nor their co-
defendants committed any of the murders testified about at
their trial. The record contains no indication that the
government ever attempted to make such an implication, nor
that the court permitted it to be made. . . . Therefore, Rule
404(b) is inapplicable to the evidence presented in this
case.”); United States v. Diaz, 878 F.2d 608, 616 (2d Cir.
1989) (“In this conspiracy case, evidence of crimes, wrongs
or acts by coconspirators is admissible, and such proof
ordinarily does not raise any Rule 404(b) question.” (internal
citation omitted)); United States v. Bates, 600 F.2d 505, 509
(5th Cir. 1979) (same).
35
On appeal, Bailey alone continues to contest the
admission of this evidence.118 We conclude that the evidence
was properly admitted. It was probative of the conspiracy and
firearm charges, was not excessively cumulative, and was not
unfairly prejudicial to the defendants. As the government
explained in its closing argument, “evidence that the DDTO
would violently protect its turf against interlopers such as
Rosario strongly supported the government theory that,
because these four defendants were selling heroin in [the
Stanley Holmes Village], they were not mere ‘independent
buyers’ from Derry.”119
The Rosario evidence was particularly probative
because of the timing of the assault. The Rosario assaults
occurred on October 30, 2010 and April 17, 2011, earlier in
the conspiracy than evidence of the other violent acts DDTO
associates committed. Thus, “those assaults [] had a longer
time to influence the thinking of others who might consider
opposing the DDTO.”120 Finally, the government conceded
that none of the defendants were involved in assaulting
Rosario. That reduced any potential unfair prejudice.121
Accordingly, we conclude that the district court did not abuse
its discretion in admitting evidence of this assault.
118
Bailey does not object to the district court’s on-the-record
balancing with respect to the Rosario evidence. The district
court included its Rule 403 determination for the Rosario
evidence together with the non-video James murder evidence.
And, as previously explained, the district court’s on-the-
record balancing with respect to this point was sufficient to
merit deference. Therefore, we review the district court’s
admission of this evidence for abuse of discretion. “The
admission of evidence is an abuse of discretion if the district
court’s action was arbitrary, fanciful or clearly unreasonable,
and we will not disturb a trial court’s exercise of discretion
unless no reasonable person would adopt the district court’s
view.” United States v. Starnes, 583 F.3d 196, 214 (3d Cir.
2009) (internal alterations omitted) (internal quotation marks
omitted).
119
Gov’t Br. at 78.
120
Id.
121
See United States v. Jones, 566 F.3d 353, 365 (3d Cir.
2009).
36
C. Admission of Bailey’s Past Conviction under Rule 404(b)
Just weeks before the official “start” of the charged
conspiracy, on September 4, 2010, Bailey was arrested with a
.22 caliber semiautomatic handgun, loaded with five rounds
of ammunition. He also had 20 grams of cocaine and $867 in
cash in his possession. The government charged Bailey with
unlawful possession of a handgun and unlawful possession of
cocaine with the intent to distribute within 500 feet of a
public housing complex (i.e., the Stanley Homes Village).
Bailey plead guilty to both charges in juvenile court.
At trial, the district court permitted the government to
introduce evidence of this arrest and conviction. The parties
agreed to a stipulation that Bailey’s firearm was operable.
The parties further agreed that certain exhibits related to this
incident—the firearm, ammunition, and a series of photos
taken at the scene of the arrest—would be admitted in
evidence. The district court admitted this evidence as being
intrinsic to the charged conspiracy and, in the alternative, as
an admissible prior crime under Federal Rule of Evidence
404(b). That rule allows evidence of uncharged past crimes to
be admitted if it is not used to establish a defendant’s criminal
propensity. Under the rule, 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.”122 Both at trial and now on
appeal, Bailey challenges the admission of this evidence.
Bailey argues that evidence was not intrinsic to the charged
crimes and not admissible evidence of uncharged conduct
under Rule 404(b). He also contends this evidence should
have been excluded under Rule 403.
1. Standard of Review
As previously explained, we generally review district
courts’ evidentiary rulings for abuse of discretion.123
However, our review of whether evidence falls within the
scope of Rule 404(b) is plenary.124 Once we determine that
evidence falls within the scope of Rule 404(b), we review the
122
Fed. R. Evid. 404(b).
123
See United States v. Green, 617 F.3d 233, 239 (3d Cir.
2010).
124
See id.
37
district court’s decision to admit the evidence for abuse of
discretion. The “admission of evidence is an abuse of
discretion if the district court’s action was arbitrary, fanciful
or clearly unreasonable.”125 We “will not disturb a trial
court’s exercise of discretion unless no reasonable person
would adopt the district court’s view.”126 As is true with
decisions under Rule 403, district courts are not entitled to
this deferential standard of review when they fail to articulate
non-propensity reasons for the admission of the contested
evidence on-the-record.127 If the court admits evidence of
uncharged acts, the district court must “articulate, with
precision, a chain of inferences that does not contain a
propensity link.”128 And, “[o]f course, ‘a mere recitation of
the purposes in Rule 404(b)(2) is insufficient.’”129 When
confronted with a proffer under Rule 404(b), a district court
should “require the prosecution to explain exactly how the
proffered evidence should work in the mind of a juror to
establish the fact the government claims to be trying to
prove.”130
Here, the district court did articulate a chain of
inferences that did not include propensity. At trial, Bailey
argued that he should not be liable for the firearm charge
because he did not have any knowledge that other DDTO
members would carry guns, use guns, or discharge guns.
Therefore, his knowledge was critical to the government’s
125
United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)
(internal alterations omitted) (internal quotation marks
omitted).
126
Id.
127
See United States v. Brown, 765 F.3d 278, 294 (3d Cir.
2014); United States v. Caldwell, 760 F.3d 267, 277 (3d Cir.
2014), reh’g denied (Sept. 16, 2014); Unites States v.
Sampson, 980 F.2d 883, 888 (3d Cir. 1992).
128
Caldwell, 760 F.3d at 277.
129
Brown, 765 F.3d at 294 (quoting United States v. Davis,
726 F.3d 434, 442 (3d Cir. 2013)) and citing Christopher B.
Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28, at
730 (“[I]t is lamentably common to see recitations of laundry
lists of permissive uses, with little analysis or attention to the
particulars.”)).
130
Id.
38
case and conversely, his defense. The district court realized
this and offered the following explanation of how Bailey’s
past arrest shows something other than his mere propensity to
carry weapons:
[I]f three weeks . . . before the start of . . . the
conspiracy, he is arrested with drugs . . . with
intent to distribute, and he’s carrying a gun,
that’s proof of his knowledge that in engaging
in a drug conspiracy or drug transactions, that
other members of the conspiracy will use guns
in connection with the possession and
distribution[;] . . . knowledge that it’s part of the
warp and woof of the conspiracy that guns will
be used to carry out the purposes of the
conspiracy, which might be protection from
those who would rob them of money, keeping
out competition in the area where they operate,
battling – forestalling apprehension, should they
be confronted by the police. . . . [I]n this case, I
think the knowledge prong is very important in
that . . . the prosecution can argue to the jury
that Mr. Bailey knew full well that in the drug
business, particularly in that very area of
Atlantic City, involved the possession of
weapons, you know, for the sole reasons I just
articulated a minute ago.131
As the district court explained, Bailey’s conviction tends to
demonstrate his knowledge that the drug business in this area
of Atlantic City was a particularly violent enterprise; one
where drug dealers were frequently armed. This is a valid,
non-propensity reason to admit Bailey’s past conviction.
2. Admissibility of Bailey’s Past Conviction Evidence under
Rule 404(b)
Bailey argues that, contrary to the district court’s
ruling, the evidence of his past conviction was not intrinsic. If
the conviction evidence is intrinsic to the charged crimes,
then we need not conduct the 404(b) analysis.132 Only
131
Bailey J.A. 2228-29 (emphasis added).
132
United States v. Green, 617 F.3d 233, 245 (3d Cir. 2010).
39
extrinsic evidence is subject to Rule 404(b): intrinsic
evidence does not constitute a prior bad act at all; instead, it
directly proves the charged crime. In United States v.
Green,133 we examined the difference between intrinsic and
extrinsic evidence at length. There, we clarified:
[W]e will reserve the “intrinsic” label for two
narrow categories of evidence. First, evidence is
intrinsic if it directly proves the charged
offense. This gives effect to Rule 404(b)’s
applicability only to evidence of other crimes,
wrongs, or acts. If uncharged misconduct
directly proves the charged offense, it is not
evidence of some “other” crime. Second,
uncharged acts performed contemporaneously
with the charged crime may be termed intrinsic
if they facilitate the commission of the charged
crime. But all else must be analyzed under Rule
404(b).134
The Bailey conviction fails to meet either definition of
intrinsic evidence. First, Bailey’s prior arrest and conviction
did not “directly prove” the charged offense. Bailey was
arrested a month before the conspiracy even began. Bailey’s
conviction could not directly prove Bailey’s role in a
conspiracy that had not yet even begun.135 In addition,
Bailey’s arrest was not contemporaneous with the charged
crime. Although proof of conspiracies is not limited to the
charged start and end dates, the indictment’s temporal
parameters usually delineate the boundary between intrinsic
and extrinsic evidence. Evidence outside the temporal bounds
of the indicted conspiracy may still be admissible, if it
satisfies the restrictions of Rule 404(b).
133
Id.
134
Id. at 248-49 (emphasis in original) (internal quotation
marks and citations omitted).
135
See United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir.
2000) (holding that evidence of an earlier-in-time crime that
was nearly identical to and factually connected to a charge in
the indictment could not be considered intrinsic evidence of
the crime charged). This Court cited Bowie approvingly in
United States v. Green, 617 F.3d 233, 245 (3d Cir. 2010).
40
Because Bailey’s past conviction was not intrinsic to
the charged crimes, it should only have been admitted if
consistent with Rule 404(b)’s requirements. To be admissible
under Rule 404(b), evidence of uncharged crimes or bad acts
must: (1) have a proper purpose under Rule 404(b); (2) it
must be relevant under Rule 402; (3) its probative value must
outweigh its prejudicial effect under Rule 403; and (4) if the
defendant requests it, the court must instruct the jury to
consider the evidence only for the limited purpose for which
it is admitted.136 Here, the second137 and fourth138
requirements are undisputedly met. Accordingly, we only
need to consider whether evidence of Bailey’s conviction had
a proper evidentiary purpose and satisfied Rule 403.
136
See Huddleston v. United States, 485 U.S. 681, 691-92
(1988); see also United States v. Caldwell, 760 F.3d 267,
276-77 (3d Cir. 2014), reh’g denied (Sept. 16, 2014).
137
Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence.”
Fed. R. Evid. 401. That definition is “very broad.” Gibson v.
Mayor & Council of Wilmington, 355 F.3d 215, 232 (3d Cir.
2004). Here, the fact that Bailey possessed cocaine with the
intent to distribute while in possession of a firearm in the
Stanley Holmes Village tends to show his awareness of
firearm use during drug trafficking in that area.
138
The district court instructed the jury that Bailey’s prior
arrest and conviction “was admitted only for a limited
purpose, that is, as evidence of Kareem Bailey’s knowledge
or the reasonable foreseeability to Kareem Bailey of the use,
carrying and/or possession of firearms in furtherance of drug
trafficking.” Bailey J.A. 3516. The court specifically told the
jury that it could “not consider the evidence that these other
acts as a substitute for proof that he committed any of the
crimes for which he is charged in this case. You may not
consider this evidence as proof that Kareem Bailey has had—
has a bad character or any propensity to commit crimes.
Specifically, you may not use this evidence to conclude that
Kareem Bailey may have committed the other acts, he must
have also committed the acts charged in the indictment.”
Bailey J.A. 3518-19. The district court also gave a similar
instruction in the final charge to the jury.
41
The government claims that Bailey’s past conviction
had a proper purpose because it tends to demonstrate that
Bailey knew drug dealers in the Atlantic City area—
specifically the Stanley Holmes Village—frequently used
firearms in the course of their trafficking activities. We agree.
The circumstances here are quite similar to those we
considered in United States v. Boone.139 There, a defendant
was charged with numerous offenses including conspiracy to
distribute cocaine.140 At trial, he argued that he was merely an
ignorant “go-fer” without any knowledge of the contents of
the bags that he admitted delivering.141 The trial court allowed
the government to introduce evidence of Boone’s two prior
convictions for cocaine distribution to rebut his “go-fer”
defense.142 We affirmed, noting that the evidence of his prior
convictions was “admitted to show that Boone was familiar
with drug-trafficking practices.”143 As we explained, Boone’s
familiarity with drug trafficking practices and his ability to
recognize cocaine and its packaging were relevant to the
question of whether he knew what he was doing when he
delivered bags of cocaine to certain people.144
Like Boone, Bailey contests his knowledge of drug-
trafficking practices in Atlantic City. And, as in Boone, the
government seeks to rely on Bailey’s past conviction to prove
he did possess that knowledge. This chain of logic does not
rely on improper propensity inferences. The temporal and
geographic proximity of Bailey’s past conviction to the
charged crime tends to show that Bailey knew drug traffickers
in this area possessed firearms in the course of their drug
trafficking.
3. Admissibility of Bailey’s Past Conviction under
Rule 403
Finally, we must assess whether the danger of unfair
prejudice associated with the evidence of Bailey’s past
conviction substantially outweighed its probative value.
Bailey has not contested the district court’s on-the-record
139
279 F.3d 163 (3d Cir. 2002).
140
Boone, 279 F.3d at 171.
141
Id. at 187.
142
Id.
143
Id.
144
Id.
42
balancing with respect to this issue, and we agree that it was
sufficient. The district court discussed the probative value of
Bailey’s past conviction while still acknowledging its
potential for unfair prejudice. Therefore, we review the
district court’s Rule 403 decision regarding Bailey’s past
conviction for abuse of discretion.145
The risk of unfair prejudice inherent in the evidence of
Bailey’s past conviction is obvious. It would have been
difficult for the jurors to hear this evidence and not make the
impermissible propensity inference. “Although the
government will hardly admit it, the reasons proffered to
admit prior bad act evidence may often be potemkin village,
because the motive, we suspect, is often mixed between an
urge to show some other consequential fact as well as to
impugn the defendant’s character.”146
Although this potential for unfair prejudice is
significant, so too was the probative value of this evidence.
As the district court recognized, this past conviction was
directly relevant to Bailey’s knowledge that drug dealers at
the Stanley Holmes Village used firearms. Bailey’s arrest one
month prior to the charged conspiracy at the same location as
the DDTO’s trafficking activity is compelling evidence of his
knowledge. Without this past conviction, the government’s
case for Bailey’s Pinkerton liability was significantly weaker.
As previously discussed, the only other evidence of Bailey’s
culpability on the firearm charge was 1) testimony from
Young that Bailey possessed “firearms at times while he was
selling drugs or engaged in the business of selling drugs in
and around” the Stanley Holmes Village and other
locations,147 and 2) evidence that after Bailey was arrested,
145
See United States v. Sampson, 980 F.2d 883, 889 (3d Cir.
1992) (“When a court engages in a Rule 403 balancing and
articulates on the record a rational explanation, we will rarely
disturb its ruling. Where, however, the court failed to perform
this analysis, or where its rationale is not apparent from the
record, there is no way to review its discretion.” (internal
citation omitted)).
146
Id. at 886.
147
Bailey J.A. 2352.
43
Derry told Bailey on a phone call that he was glad that Bailey
“wasn’t strapped” (armed) when he was arrested.148
Accordingly, we cannot say that the district court’s
analysis and resulting conclusion regarding Bailey’s past
conviction was “arbitrary or irrational.”149 In United States v.
Vega,150 we affirmed the district court’s admission of
evidence that the defendant—on trial for conspiracy to
distribute and possession with intent to distribute heroin—
participated in a drug conspiracy a few years earlier.151
[T]he Government’s evidence of Vega’s
participation in the 1997 drug conspiracy was of
critical importance because Vega had denied
knowledge of the [charged] 1999 conspiracy . . .
. The evidence was highly probative in
demonstrating that Vega knew he was receiving
a drug package . . . and that he was connected to
Jairo, who was a participant in both the 1997
and [charged] 1999 conspiracies. Although the
evidence undoubtedly had some prejudicial
value, we cannot say that the Court abused its
discretion by concluding that this prejudicial
value was not so unfair as to outweigh its
probative value.152
We affirm the district court’s admission of the Bailey
conviction.
V. MISTRIAL CLAIMS
Lastly, Bailey, Macon, and Venable contend that the
district court abused its discretion when it denied their
motions for mistrials based on statements witnesses and the
148
Supplemental Appendix at 31-32 (Government Exhibit
192.1).
149
United States v. Schneider, 801 F.3d 186, 198 (3d Cir.
2015) (internal quotation marks omitted).
150
285 F.3d 256, 263 (3d Cir. 2002).
151
Id. at 260.
152
Id. at 263 (citing United States v. Palma–Ruedas, 121 F.3d
841, 852 (3d Cir. 1997), rev’d on other grounds, 526 U.S.
275 (1999) and United States v. Echeverri, 854 F.2d 638,
643-44 (3d Cir. 1988)).
44
government made at trial.153 Bailey and Venable argue that
the district court should have declared a mistrial after a
prosecution witness, Atlantic City Police Detective Thomas
Holton, mentioned that DDTO associates sexually assaulted
Anthony Rosario during the October 2010 attack. The
prosecution had previously agreed not to introduce the
“sexual assault aspect” of the Rosario attack at trial.154 When
Detective Holton took the stand, he described his interview
with Rosario and his mother after the attack. He testified that,
“[t]he mother first did most the talking and then Anthony did
some of the talking. The mother was visibly upset and
shaken, as was Anthony. They advised that he was taken to a
house, sexually assaulted—.”155 The government immediately
cut Holton off, ending his explanation.156 But defense counsel
objected, and all four defense counsel moved for a mistrial at
sidebar.157 The district court denied the motion, but offered to
give a limiting instruction. Defense counsel rejected this
offer, fearing it might draw more attention to the improper
testimony. The sexual assault issue never resurfaced at trial.
In reviewing the district court’s denial of the mistrial
motion based Holton’s comments, we assess three factors.
We consider: (1) whether the remarks were pronounced and
persistent, (2) the strength of the other evidence, and (3)
curative actions taken by the district court.158 Here, Detective
Holton’s single, fleeting reference to the sexual nature of the
Rosario assault did not generate the sort of prejudice that
153
“We review the denial of a motion for a mistrial based on
a witness's allegedly prejudicial comments for an abuse of
discretion.” United States v. Riley, 621 F.3d 312, 335-36 (3d
Cir. 2010), as amended (Oct. 21, 2010) (internal quotation
marks omitted).
154
Bailey J.A. 2240-41.
155
Bailey J.A. at 3228.
156
Id.
157
During the sidebar, the prosecutor indicated that he had
not had time to speak with Detective Holton that morning
because Holton had been running late. The prosecution also
clarified that it had no intention of bringing out that
testimony, which it had previously agreed not to elicit.
158
Riley, 621 F.3d at 336.
45
necessitates a mistrial.159 The government promptly cut off
Detective Holton’s testimony, and the jury did not receive
any details regarding this issue. Furthermore, Holton’s
comment did not in any way suggest that any of these four
defendants were involved in this attack on Rosario.
Accordingly, we reject the contention that this statement
should have resulted in a mistrial.
Venable also argues that the district court abused its
discretion in failing to grant a mistrial on the basis of a
second inconsequential remark. During their investigation of
the DDTO, two officers collected spent .22 shell casings from
the scene of a shooting at the home of Barbara German. At
trial, Kareem Young testified that he observed Venable with a
firearm on multiple occasions, in particular a .22 caliber rifle
with a sawed-off barrel. Young also testified that Venable
admitted to him that Venable was involved in the Barbara
German shooting. Towards the end of the defendants’ trial,
forensic examiners discovered that the spent shell casing from
the German shooting matched Venable’s .22 caliber rifle.
Because of the late disclosure of this report, the government
agreed that it would not present evidence of that ballistic
match or the “head stamp” (a distinctive marking on the top
of a bullet) of the recovered shell casing.
Nevertheless, at trial, Detective Michael Tracy
accidentally testified that he discovered a casing of a “.22
caliber, head stamp super X”160 bullet at the scene of the
German shooting. The prosecutor immediately cut Tracy off
and told him: “don’t get into the head stamp.”161 Venable
objected, and moved for a mistrial.162 The district court
denied the motion.
Nothing in Tracy’s testimony or any other witness’s
testimony connected Venable’s .22 caliber rifle to the “super
159
See United States v. Long, 748 F.3d 322, 328 (7th Cir.
2014) (single fleeting reference to a murder unconnected to
the case introduced inadvertently and never discussed again
over the course of a lengthy trial does not give rise to a
mistrial).
160
Bailey J.A. 3472.
161
Id.
162
The prosecutor indicated that the witness had been
instructed not to mention the head stamps.
46
X” head stamp. It is unlikely that the jurors even understood
the relevance of Tracy’s reference. Therefore, the district
court did not abuse its discretion in denying Venable’s motion
for a mistrial.
Finally, Macon contends that the government
constructively amended its indictment during its rebuttal
summation, entitling the defendants to a mistrial. During
summation, Macon’s attorney displayed a photograph of
Macon with a group of men who were DDTO rivals. Macon’s
counsel argued that the photograph proved Macon was not a
DDTO associate because if he were, he would not have posed
with rival gang members. In rebuttal, the government argued
that the photograph had been taken in mid-March 2013, after
Mykal Derry had already been arrested and the “Derry
brothers’ reign on the streets of Atlantic City [was] coming to
a close.”163 The indictment charged that the drug-trafficking
conspiracy ran until the end of March 2013. Macon asserts
that the government’s statement regarding the Derry’s
brothers’ “reign” constructively amended the indictment by
shortening the period of the alleged conspiracy.
The argument hardly merits discussion. The
government never asserted that the conspiracy had formally
ended in mid-March 2013. It merely posited the common-
sense inference that Mykal Derry’s influence had waned due
to his incarceration. Furthermore, Macon’s arguments missed
the point of the constructive amendment doctrine. The bar on
constructive amendments seeks to ensure that the jury does
not convict the defendant for uncharged conduct.164 Here, the
government’s rebuttal argument actually narrowed the scope
of the conspiracy, which, if anything, may have assisted the
defendant rather than prejudiced him. Accordingly, we find
that the district court did not abuse its discretion in denying
Macon’s motion for a mistrial.
VI. CONCLUSION
For all the reasons set forth above, we will affirm the
judgments of conviction of each of these four defendants.
163
Bailey J.A. 4689.
164
United States v. Miller, 471 U.S. 130, 144-45 (1985).
47