United States v. Lee

PRATTER, District Judges, and Circuit partially wrapped around ... to be peared Judge.* (Id. 351-52.) object.” long, narrow the coat particular note of because He took OF THE COURT

OPINION degrees over 90 temperature JORDAN, Judge. further observed that Lee was day. Circuit Kraus bullet-proof tan vest and was wearing a in the R. Lee was convicted Joseph a Lee volunteered that wearing shirt. for West- District Court United States off bullet- trying been to take he had being Pennsylvania of a ern District him to raise his proof vest. Kraus ordered firearm, in viola- of a possession felon in place and them hands above his head sen- 922(g)(1), § and was of 18 U.S.C. tion According Kraus could see them. where a to 120 months’ tenced as career offender Kraus, moment, he saw at what con- He both the imprisonment. appeals pis- to be a black semi-automatic believed and his For follow- viction sentence. thigh. lying right After see- tol on Lee’s reasons, affirm conviction ing we will object, his own ing the Kraus drew remand for his sentence and re- but vacate in the air. your and told Lee: “Get hands sentencing. 353-54.) (Id. In response, at Don’t move.” Background I. wheel, steering said that grabbed Lee sped away from the go, he had to and Stop A. The scene. 27, 2005, Lieutenant Kevin On June fPittsburgh City of the o Police Kraus police dispatcher, re- Kraus called Department traveled to the 2400 block of emergency, an and ported that he had in the Hill District of Webster Avenue description a of Lee and the provided Pittsburgh, Pennsylvania investigate a thereafter, Shortly Kraus learned Jeep. day there the homicide that had occurred Jeep had found a that another officer police in an unmarked before. Kraus was matching description Grand Cherokee Lee, driving a blue car when he observed parking It in a lot of Lee’s car. was Cherokee, stop sign.1 run Jeep Grand A. Smith Terrace Christopher rear of the (the Apartments “Apartments”), about siren and followed Kraus activated his tenth of a mile from where Kraus him for the traffic violation. stop Lee to stipulated that he over, and, stopped Lee. Lee later according pulled abruptly police Jeep where the Kraus, abandoned “rapid, suspicious began making movements,” it. “down towards found reaching and * Pratter, suspect in the murder 1. Lee has never been Gene E.K. United States Honorable investigation, "just happened be driv- Judge the Eastern District District Court day ing block” the after the down same Pennsylvania, by designation. sitting (App. at murder. B. The Search that he had lost the scent. The building searched, but Lee found. parking Kraus went to the lot at the Apartments Jeep and identified the as the C. The Arrest one that he had stopped earlier later, Approximately Lee had fled. All the two July windows were weeks 12, 2005, down and the Kraus open. still sunroof remained learned that police fellow caught sight vest was officers had bullet-proof lying on the pur- and were However, suing They finally passenger side the vehicle. Lee. him hiding found long apartment. an object weapons coat and slender No or contraband seeing in Kraus remembered the backseat were found on the time of his arrest, were no nor in longer there. Four other the apartment officers where he was police him, the scene to aid found. The Kraus arrested took him investigation. an During area, police station, search interview room at the them, Faulds, gave one of Kevin him found an AK- Miranda warnings. He 47 assault rifle signed waiving beside a fence a form separating his Miranda rights, Apartments proceeded the next door Fran- and Kraus to interview him. (the cis Court Housing Complex Lee denied “Housing having guns in his car Project”). joined Kraus when stopped Faulds Kraus him. However, he acknowledged fence and AK-47 partially observed the that he had been wearing a covered in black bulletproof coat with distinctive vest. He said that he had flap, lying against the fence. started to off Kraus identi- take ap- vest as Kraus fied the black proached coat as the one he the car had seen he because wanted Jeep. in Lee’s create a diversion so that Kraus would not a bag marijuana see that was in the car. A police bloodhound named Digger and explained Lee further away that he drove handler, Harkins, Rudolph his Officer soon when Kraus drew his gun because he at arrived scene. Kraus informed thought Kraus had drawn the in reac- Harkins that the other officers had already tion to seeing bag of marijuana. rifle, Jeep, located and coat. Harkins Kraus told Lee that he any had not seen gave Digger the scent of the Jeep’s driver marijuana but rather a had seen black by wiping swab, the driver’s seat with a pistol on lap. semi-automatic Lee’s Lee smell, offering the swab for Digger to responded that what Kraus had seen was giving dog a command to track the actually a “black cell phone flip- and silver Digger flight scent. then a went down style open and lap.” extended his steps, lot, a through parking and came to 414.) (App. at within ten to fifteen inches of the rifle and Harkins, According Kraus, the coat. Digger According to Lee “insisted that fence, then right along “veered he does not typically carry own or guns. went However, [and] down the fence line approxi- he did state that he had access 458.) mately feet.” (App. Dig- at a guns lot of and would use them ger found an area of the fence that against anyone had him threatens or his (Id. open, been ripped through open- 417.) went family.” Lee also said that ing, and continued Housing towards the previously he had a shot at man named Project on the other side the fence. He Ernest “Pickles” Harris and that there stopped front of door of “long time, a vacant awas ongoing violent feud” and, building Housing Project, (Id.) their Finally, between two families. down, point, circled and sat indicating while Lee insisted that he not have did stopped. Addi- when was let-proof vest stop traffic during him with weapons objection, dispatch tapes fleeing tionally, over earlier, he admitted two weeks provided transcript and a was on an played, him stop had tried to Kraus when objection, the Finally, over jury. when Lee to the in 2000 or 2001 occasion earlier Dig- admitted District Court a in vehicle. guns However, in to track Lee. efforts ger’s History Procedural Digger D. over whether dispute light of rifle, the Court at the coat alerted 3, 2006, jury in the grand May On “agreed government noted Pennsylvania returned Western District testimony in the any reference eliminate with charging Lee indictment a one-count he reached Digger paused” when firearms, of two possession being felon (App. them. pistol, in violation of 18 U.S.C. a rifle and case, into 922(g)(1).2 § The rifle referred government’s At the close of the found is the AK-47 that was acquittal judgment indictment Lee moved coat, a black near by the fence under lying alleged possession respect his of Lee’s abandoned car. assuming the location that what Kraus Even pistol. allegedly Kraus had seen pistol argued, what there pistol, had seen was pistol ever although no such lap, had ever pistol evidence that was no commerce, recovered. as is re- in interstate traveled § 922(g). under 18 U.S.C. quired motions, trial, filed several Prior to motion, and denied denied the tapes audio including suppress motion it at defense counsel renewed again when interviews, exclude the a motion to of all evidence. the close for a Daubert evidence and bloodhound admissibility trial, of that with re- hearing Throughout to test Lee’s defense 404(b) evidence, a under Rule rifle had never been motion gard bullet-proof person Jeep exclude the evidence of the and that he was interview statements of it. de- disposed Specifically, “[t]he vest and Lee’s (1) Kraus, reliability of ac- of judgment and a motion for attacked the fense (2) observations, quittal regard pistol to the on offered evidence with [Kraus’s] pistol was to have jurisdictional ground opportunity that had an that others area, affecting interstate crime-ridden not a firearm or the rifle in that hidden (3) exception complete of a limit- commerce. stressed the absence With ... and 404(b) weap- that is not to the tying ed motion evidence Lee portion physical 63.) Op. the District Court Br. at appeal, (Appellant’s relevant to this coat.” on and of Lee’s motions. denied all jury instructed The District Court a find- could be based on trial, objection, gov- that a conviction At over Lee’s a or a possessed pistol, either ing Lee ernment introduced the statements rifle, prosecu- both. The Court and the during with Kraus or his interview Lee made re- unanimity was jury wearing that Lee bul- tor told and evidence was commerce, foreign transport in or designate separate interstate 2. The indictment commerce, any single affecting appears possess to be a in or in form or counts so ammunition; any 922(g)(1) provides: § to receive count. 18 U.S.C. firearm or or has or been firearm ammunition any person ... who It be unlawful for shall transported shipped in interstate or for- court of [] has convicted in been eign commerce. by imprisonment punishable crime 922(g)(1) § exceeding ship year 18 U.S.C. one ... term bloodhound; any finding possession fifth, quired the District jury weapon, interrogatories either sentencing by Court erred at classifying weapon separate each as a basis of treated Lee’s state misdemeanor conviction for liability. On criminal June endangerment reckless aas crime of vio- possessing guilty found Lee lence, thereby increasing length of his guilty possessing pistol. rifle but not sentence; and, sixth, felon-in-pos- that the Lee subsequently sentenced session statute is unconstitutional. We ad- imprisonment, 120 months to be fol- argument dress each in turn. by three-year

lowed term supervised release, a special assessment of $100. Prejudicial A. Spillover Lee filed timely appeal, notice of chal- argues that the District Court erred both his lenging conviction and his sen- denying his motion for judgment of tence. acquittal on the pistol charge because II. Discussion3 there was insufficient evidence that pistol, one, even if he had traveled inter-

Lee advances six arguments appeal: commerce, state which is a first, required ele- charge prejudicial- that “the rifle was § ment under 922(g). 18 U.S.C. Although ly by tainted support evidence offered to ultimately Lee was acquitted of [pistol] pistol improper charge”4 (Appel- charge, he 19); second, contends that Op. lant’s Br. District Court’s error in permitting that allowing District Court erred in gov- charge go to the entitles him to a new ernment to introduce evidence that he trial on was the rifle wearing charge, because the rifle bullet-proof charge vest at the time he Kraus; third, stopped by prejudicially “tainted” District submitted to allowing support pistol Court erred Kraus to charge. testify (Appellant’s Op. about the Br. interview statements Lee In other words, regarding weapons made prior possession; Lee contends that there was preju- fourth, prosecutor spillover dicial committed mis- charge one during Digger, conduct his discussion of other. subject juris- rately (for The District Court had matter before example, the District Court pursuant § diction to 18 U.S.C. 3231. We judgment acquittal moved for jurisdiction § under 28 U.S.C. 1291 and regard alleged pistol possession to the only), 3742(a)(1), pursuant § to 18 U.S.C. as this is separately by were treated the District Court appeal judgment an a from final of conviction trial, throughout separately and were noted in and sentence. jury charge jury interrogato- both the and the significantly, ries. jury ultimately Most the noted, already charged

4. As Lee was in an acquitted possessing pistol, Lee of but separate indictment charges did not into possessing convicted him of Finally, the rifle. counts, possession distinct so unlawful alleged possession alleged rifle and the were, pistol effectively, part both the rifle and pistol possession continue be treated as two single of a alleged count. The fact that Lee's separate charges by parties appeal. possession alleged pistol possession rifle and Accordingly, we too will treat the indictment single set per- were forth in a count would setting separate charges pur- as forth two for context, haps problematic be spillover in a poses assessing whether evidence of the were it not for the fact that the District Court alleged pistol possession jury's tainted the parties consistently and single treated the possessed consideration whether Lee separate containing count indictment as two parties, charges: "pistol rifle. Like the we will charge" the "rifle and use terms charge.” alleged possession charge" “pistol charge” The "rifle rifle and the to distin- alleged pistol possession argued sepa- guish charges. the two 178 happened— whether what assessing with Review

i. Standard of charge pistol after acquittal on the an debate begin with a about parties it—means hearing evidence on apply we should of review the standard fairly jury could not have addressed one criminal evaluating a claim that when question, To charge. answer rifle jury’s consideration charge has tainted the Pelullo test. employ argues that we should another. Lee States articulated in United the test apply However, acknowledging Pelullo (3d Cir.1994), Pelullo, in 14 F.3d 881 v. a claim of taint applied evaluate must be that, confronted “[w]hen which we stated us what standard leaves to determine still taint, we must ‘consider problem a this, like in in case employ of review presence [invalidated] of the whether the never raised the issue of taint was sufficiently any effect spillover count had appears This the District Court. before ” call for reversal.’ Id. prejudicial us, impression first an issue of Ivic, v. 700 (quoting States 897-98 United challenges look how we address so we (2d Cir.1983)). re- We must F.2d guide sufficiency of evidence if the allow for a new trial verse and in apprais- role appropriate appellate influenced,” id. at “probably complaints about verdict’s ing post-hoc “ likely upon to be confused or relied ‘was insufficiency of like an basis.5 Somewhat evidence’ its deliberations improper argument argument, an the evidence v. United States remaining counts.” that, allegedly taint- taint asserts once the Cir.2003) (3d 102, 122 Murphy, 323 F.3d jury’s from the ed material is removed Pelullo, 898). 14 F.3d at Even (quoting calculus, to support is sound basis there no of the invalidity though Lee raised remaining charge. trial, charge government, cit- pistol Wright, v. ing United States sufficiency of evidence When (3d Cir.2004), re- plain error argues Dis challenge has first been made argue because Lee did applies view Court, plenary we exercise review on trict the District prejudicial spillover before appeal specifically and ask “whether there pleading, “in such as relevant is when viewed substantial Ans. (Appellee’s a motion for a new trial.” the govern most favorable to light atBr. ment, fact to allow a rational trier of would Bornman, convict.” United States misleading, as it seems debate (3d Cir.2009) (quotations F.3d presumption proceed from the mistaken omitted). Though plenary, citations the test articulated Pelullo is highly deferential.” “standard review appellate It is not. standard of review. However, Id. where a does not defendant Rather, analytical to as- approach it is an challenge sufficiency mount charge one sessing whether evidence Court, in the District we review of another unfairly affected consideration plain error.6 States Guada here tasked United charge. particular, In we are “(1) plain error met when Raising 6. The standard the issue of taint before the verdict 5. error; (2) is clear or there is an the error lawyer may a does not be difficult as defense obvious, subject to reasonable dis- rather than know, pre-verdict, the counts which (3) pute; appellant’s the error affected acquit. a jury will convict or Even if defen- ordinary rights, case which in substantial satisfactorily raise the issue of dant cannot district it affected the outcome means however, verdict, do he can taint before (4) seriously proceedings; and the error court post-verdict so in a motion. fairness, reputa- integrity public affects the (3d Cir.2005). lupe, 402 F.3d 410 n. the District Court did not err it when standard, Analogizing judgment to that we hold denied Lee’s motion for of ac- quittal pistol charge Lee did not raise the of taint as to the because issue because Court, we must there was the District evaluate his sufficient evidence to allow that through charge Second, application go jury. claim to the taint — continues, plain argument assuming Pelullo test —under a error standard even motion, of review.7 the Court erred in denying Lee’s can rifle conviction stand because there below, As discussed we conclude that prejudicial spillover was no of evidence Pelullo, claim of taint fails under pistol from the charge. employing generous even when the more plenary Accordingly, standard of review. government’s The insistence that concluding no difficulty we have that his there was sufficient support evidence to plain claim does not succeed under error pistol charge is not its most persuasive review. Indeed, argument. it might have been the part pressed better of wisdom not to have Prejudicial Spill-

ii. The Merits charge for that go jury. The Argument over pistol recovered, was never and the testi government mony and, turn, contends that Lee’s about its make about prejudicial spillover argument fails for two whether traveled interstate com First, says merce, reasons. the government turned out to a equivocal.8 be bit judicial merits, proceedings.” reaching tion Marcus,-U.S.-, United States v. that we were not 2159, 2160, proceeded 130 S.Ct. explain to use the Pelullo factors to - - (internal (2010) quotations why spillover argument L.Ed.2d failed in omitted). Thus, Wright, alterations event. Id. our focus onwas language requires of Rule 33 that a defen- holding 7. odds This at with our reason- dant who a files motion for new trial to ing Wright. Wright, the defendant filed a specify grounds upon he seeks motion to dismiss certain counts of the indict- new trial. ment, which the district court denied. 363 guilty at 241. example, F.3d After the returned a 8. For the interstate commerce ele- verdict, judg- pistol charge defendant filed a motion ment of the rested first on Kraus, renewing acquittal, arguments gun ment of testified he saw on lap "appeared” he had made in his motion to dismiss. Id. Lee's be .9 a millimeter size, granted pistol, The district court shape, the defendant's mo- based on and barrel of respect gun, tion with to certain but counts denied but he admitted that he was sure. respect the motion with "appeared other counts. Id- He also testified that the to be appeal, argued Taurus,” On possibly possibly defendant that he was [or] Beretta but prejudicial spill- again entitled to new trial due to he conceded that he "couldn't sure.” (Id. government over from the evidence that was admitted to also called prove the Willgohs, special agent counts on which district court Mark with the Bu- Alcohol, Tobacco, granted judgment acquittal. Id. Explo- reau of & Firearms sives, stated that we did not need to reach the who testified that Beretta firearms are spillover argument, Italy merits defendant’s manufactured in and Taurus firearms because the defendant had Willgohs not raised before are manufactured in Brazil. further court, the district and Federal Rule of Crimi- testified that there no commercial manu- nal Procedure 33 authorizes a new Pennsylvania. trial facturers of firearms How- ever, grounds Id. private raised defendant. he noted that there are some 247-48. We Pennsylvania. reasoned that the district court manufacturers of firearms in admitted, to, that, granting Willgohs could not have erred in not a new as he had without prejudicial spillover examining gun question, trial based on when the in he could not requested gun defendant never a new trial on that determine whether the was made a However, ground. despite stating private Id. at 248. manufacturer aor commercial one. not lead to count does it tions under one However, whether we need address of the convictions automatic reversal charge pistol to was error send Gambone, was, v. other counts.” United States because, assuming even (3d Cir.2003) (citing 180-81 prejudicial 314 F.3d correct that no is government 897). Pelullo, 14 into F.3d charge spilled over from that taint charge. of the rifle jury’s consideration regarding the to whether evidence As admissible charge would have been preju- pistol there was analysis An of whether of the only possession in trial about Lee’s inquiries. a spillover two See dicial involves Cross, rifle, had the District Lee asserts v. 308 F.3d United States Cir.2002). of First, granted judgment him a (3d properly to Court if “the evidence charge, on the evidence acquittal pistol count would prove the overturned pistol have been remaining relating to the would prove the been admissible Lee, rea- According count, preju- stricken. the defendant was valid belief diced, allowing evidence Kraus’s need to consider son and there is no pistol a “would be demon- the out- saw the evidence influenced whether words, carry if, firearms creating propensity strate Lee’s Id. In other come.” i.e., a person pistol who carries trial as to the valid count hypothetical also lap type person is the count only, the evidence of the invalidated (Ap- anyway, transports rifle his back would have been admissible seat.” Admission of such pellant’s Op. Br. there. If evidence analysis ends Id. admissible, evidence, argues, pre- is propensity “then we have been would not 404(b) cisely what Rule “is intended whether the verdict on the must consider However, even if we as- adversely by prevent.”9 Id. remaining count was affected pistol regarding the inad- sume that evidence that would have been the evidence during a count.” would not have been admissible at a trial limited to that missible alone,10 charge Lee has convic- trial on the rifle “Generally, Id. invalidation of the 404(b) weapon, led to Lee’s provides following: draw his turn 9. Rule Thus, away. argued crimes, speeding could be wrongs, is other or acts Evidence of chronology part the evidence prove the character of not admissible demonstrating why Kraus took the ac events person in order to show action in conformi- however, may, ty did. See United States Ra therewith. It be admissi- tions that he Cir.1995) mirez, (7th proof purposes, such as ble for other 45 F.3d motive, intent, opportunity, preparation, (recognizing "intricately related doctrine” identity, plan, knowledge, or absence uncharged criminal under which "evidence of accident, provided upon mistake admissible, activity if it does not satis is even accused, request by prosecution 404(b), fy requirements that evi of ... if provide criminal case shall reasonable no- intricately dence related the facts of trial, during trial if the tice in advance of (internal quotations, before the court.” case pretrial good notice on cause court excuses Cross, omitted)). But citations italics cf. shown, general nature of such (stating "we ex at 320 n. 19 at trial. evidence it intends to introduce press evi view on whether ‘other acts’ no 404(b) Fed.R.Evid. directly prove does not an element dence that (and charged may be 'intrinsic' of the offense plausible argument that 10. There is at least a 404(b)) exempt if the other thus from Rule pistol could have been admissi- 'inextricably intertwined’ with acts pistol charge in the because ble absence underlying charge, the evi so that events why his own it reveals Kraus drew necessary air,” jury to understand Lee, dence is for the "[g]et your yelled to hands in occurred”). Lee, not need offense do response, how the why scene. fled the 353-54.) admissibility question, howev seeing to consider (App. Kraus testified that er, argument spillover fails lap because Lee's pistol what caused him on Lee’s any prejudi- failed to show that there was and a single officer described the entire episode. While it is true that spillover. pistol cial the charge and the rifle charge were set forth Pelullo, In we established four- together single-count indictment, the spillover claim. part test to evaluate and that allegations both arose out of the ask was, single day, events of a there on this (1) charges whether were inter- record, meaningful no jury risk that ... twined with each other so as to was confused when asked to consider the part create confusion on the substantial charges. two jury; of the proof jury’s of the comprehension is guilty

that it found Lee of possessing the (2) whether evidence for differ- guilty rifle but not of possessing pistol. sufficiently Clearly, ent counts was distinct it was able separate the issues separate charges, so, on and the support verdict other and it did in keeping counts; with the District Court’s instructions. The said, In order to find the guilty, defendant (3) substantially whether all the evi- you unanimously must determine that support dence the invalid introduced the defendant specifically possessed the conviction would have been admissible to rifle, or the pistol, or both. For exam- counts, prove other and whether ple, it jurors is not sufficient for six of the on elimination count which the agree possessed that the defendant invalidly defendant was convicted would rifle agree and the other six to pos- significantly changed strategy Rather, pistol. sessed the the verdict trial; of the slip jurors indicates that all must agree weapons, any, if the defendant (4) charges, language [whether] possessed. used, that the government and the evi- 601-02.) (App. Questions about pis- dence introduced during trial ... tol and the rifle sepa- were also set forth sort of the to arouse [and] rately special interrogatories at- whether defendant was branded addition, tached to the verdict form. decidedly pejora- with some terms with closing argument, prosecutor empha- prejudi- tive connotation ... so that the sized that the needed to consider the spillover cial palpable. effect is pistol charge and the rifle charge separate- (internal 14 F.3d at 898-99 citations omit- ly, saying, ted). have to find that [Y]ou defendant The first Pelullo factor asks whether the possessed possessed the rifle or pis- sufficiently charges were intertwined to or possessed tol both. That means all of part jury. create confusion on the you as a whole. the Judge you, As told argues Id. 898. Lee that the charges of you say, six can’t we believe that he did create a single-count rifle, confusion because possessed the and the other six indictment charged possessing him with say, we he possessed pistol. believe date, pistol the rifle both the same enough. ju- That’s not All final twelve accept arguendo solely even if we trial about the rifle. pistol would not have been admitted ain very potent That evidence stands defen- rifle. to rors have determine allegation pos- that Lee of the independent possessed the the rifle or possessed dant evidence of the pistol, a as does the sessed possessed both. pistol or from the tracking his scent bloodhound’s 615.) (Id. short, in- by argument, In the rifle along path a where was Jeep form, jury the struction, and the verdict found. pistol rifle and keep to the was told factor asks to look proves The third Pelullo us and their verdict charges separate, charge pistol the at whether absence they did. strategy the would have affected defense’s whether factor asks Pelullo second only. 14 charge in a trial the rifle F.3d on charge was relating to each the evidence argues Lee that the error af- at 898-99. as to one sufficiently distinct that a verdict strategy trial because the Dis- fected his supported without reference could be jury the a trict Court allowed to base other. 14 F.3d regarding the propen- finding guilt probabilities whether differently, we must ask 898. Put words, Lee was sity. other because enough independent evidence there was firearms, jury the having accused of two rifle to concerning possession permitted probably was assume that argues that the charge. Lee support Lee argues had at least one. together pistol and government mixed strategy, trial necessarily influenced his jury by telling rifle evidence because, only possession the rifle been if long a slender already Kraus had seen acquittal charged judgment and had the of Lee’s object on the back seat concealed granted jury as the pistol, been jury to infer Jeep, by asking and then any have needed instruction would not lap that what Kraus saw in Lee’s was unanimity rifle about as either the prosecutor’s points firearm. pistol or both. closing he asked the argument, where Instead, been a the defense would have jury, about the fact that there was “[h]ow straightforward plea weighing that lend back seat? Does support- Had evidence evidence.... any to the fact that what more credence ing improper handgun charge never gun and lap was on was a [Lee’s] stricken, presented or been been squirt gun?” (App. jury not have been authorized to would that Lee’s Leaving logic aside fact rely compromise reach a verdict or prejudi- is that rifle here evidence was propensities but would instead have pistol cially support spilling over weigh forced the evidence and been point charge, opposite which is credibility make determinations. make, fails trying argument he is his 37-38.) Op. Br. at (Appellant’s because there was sufficient evidence has a crucial factual flaw possession argument his that was distinct from This rifle author- any pistol Shortly after Lee in its assertion that evidence. a compromise to reach verdict. The Jeep, the same distinctive ized abandoned explicitly told that Jeep repeatedly in the that Kraus had seen black coat permitted to do such object they on the covering long, slender very thing, clear along fence near should be backseat was located that Lee cites.11 does not Jeep, covering and that coat was instruction unanimously guilty, you must determine [Lee] 11. The instruction referred to the District to find "[i]n Court's statement order identify any arguments charge. Accordingly, additional Lee is not entitled a new trial on the any charge. would made or witness he rifle have would called—or not called—if the trial had have B. The Vest Bullet-Proof solely charge, on the rifle nor does he been Lee next argues that the of wit- District Court questioning describe how government erred when it allowed the materially ness would have been different. introduce evidence that he fact, wearing was strategy Lee’s seems to have been bullet-proof at vest the time of the traffic exactly been, says ought what he it to have and, further, stop, when it allowed the namely, asking jury weigh evi- government argue, goes “what more determinations, credibility dence and make with a bullet-proof guns?” vest than (App. focusing uncertainty on in Kraus’s testimo- 618.) at impermis- asserts this is ny, arguing paucity physical of propensity sible evidence under Rule appears that the jury evidence. It did not 404(b) and it substantially more “rely on propensities” suggests prejudicial probative than under Rule 403. did, they but was able “weigh instead The District Court ruled that the bullet- credibility the evidence and make determi- proof vest was excludable under Rule nations,” they ultimately acquitted because 404(b) it because “is strong relevant and of pistol charge. him the of alleged possession [Lee’s] The final Pelullo factor asks whether 4.) (App. firearms.” at As a result of the pistol charge accompanying and its ruling, District Court’s both govern- pejorative inflammatory. evidence was or ment’s Lee’s briefs focus on whether 899. Lee at does not offer an the bullet-proof vest was admissible under factor, argument probably because 404(b). Rule plainly pejorative the evidence was neither view, In our the admissibility of inflammatory. nor The evidence was not bullet-proof vest does not turn on Rule that Lee threatened Kraus with pistol, 404(b), because is not evidence of simply that but Kraus saw what he be- separate wrongful act.12 No one suggest pistol lap. lieved be a on Lee’s ed to the District or Thus, whether or not the District Court possession Lee’s bullet-proof vest denying judg- erred Lee’s motion for illegal13 was or otherwise wrongful itself; of acquittal, indeed, ment all of the Pelullo factors suggestion there was no indicate that there no prejudicial spill- that there anything inherently “bad” pistol charge over to the rifle about or possessing wearing a bullet-proof rifle, specifically possessed prove that ... person [he] the character of a 601.) pistol, (App. or both.” order to conformity show action in there- with,” regardless chronology. says bullet-proof 12. Lee vest evidence act,” but, "prior among of a is evidence bad illegal possess 13. While it be can a felon to problems argument, other with his he is in- armor, 931(a) ("[I]t body § see 18 U.S.C. shall timing. (Appellant's correct as a matter own, person purchase, be unlawful for Op. wearing Br. at His of the vest was armor, possess body person if that has been all; rather, prior act it was contem- felony convicted of a that is ... crime of poraneous gun possession with the at issue. ....”), violence no one has indicated that Lee point, 404(b) though, toMore Rule does type is the felon wrongful for whom it would be may not focus on when the other act occurred; illegal, argued keeping and no it is aimed out one that Lee had com- crimes, wrongs, illegal having “[e]vidence other or acts mitted an act the vest. properly which the could bullet-proof upon denee of the wearing vest. says pos- noteworthy only for what move toward conclusion about vest is back object about the nature session.15 Thus, bullet-proof vest Jeep. of his seat bullet-proof argues that Lee next instance, analyzed should, in first Rule under vest should have been excluded 402,14as circumstan- Rules 401 and under probative val- “any purported because directly a fact tial evidence related substantially outweighed by the was ue issue, of a alleged possession namely, Lee’s prejudice.”16 danger (Appel- unfair of vest bullet-proof firearm. Evidence of (original emphasis).) Br. 44 Op. lant’s long, slen- that the supports the inference argues prosecu- that the Specifically, back- on the object the coat der beneath accompanying goes tor’s statement—‘‘what firearm, manner a in the same seat was bullet-proof guns? a than more with vest small a razor and presence of the fact that there was Does corroborate a can bags crime scene glassine found gun and was a lap that there powder support the inference that white in the back seat?”—makes the introduction In nearby is cocaine. both residue found prejudi- bullet-proof vest even more drug paraphernalia drugs the case of cial than it would have been on its own. vest and a bullet-proof and the case of 618.) (App. firearm, relationship the con- between ruling under A district court’s and the sometimes used traband tools may reversed if it is Rule 403 be logical inference be contraband allows “arbitrary or could, irrational.” See United words, jury after drawn. other (PA), Inc., States Univ. Rehab. Servs. the ob- considering description of Kraus’s (3d Cir.2000) (en 657, 665, 669 205 F.3d ject and Lee’s decision backseat banc) (“[We] cannot a District vest, reverse draw an inference bullet-proof wear a Rule 403 conclusion under Federal object a firearm. The bullet- Court’s was unless such a conclusion is held to be an therefore circumstantial evi- proof vest is 'chronological conceptual’ as "evi- or void in Lt. 14. 401 defines relevant evidence Rule tendency story....” (Appellee’s having any Ans. Br. at dence to make exis- Kraus’s However, mentioning without the bullet- consequence even tence of fact that is vest, enough proof facts in probable there of the action more or determination why chronology understand probable than it would be without the less stopped Jeep at the Kraus Lee's and looked Rule evidence." Fed.R.Evid. 401. 402 states backseat, admissible, namely, the traffic violation and the ex- "[a]ll relevant evidence making Lee was when he furtive movements cept by provided the Constitu- as otherwise Thus, bullet-proof pulled vest States, was over. Congress, by tion of the United Act of chronology. necessary was not to construct a rules, prescribed by by by these or other rules statutory Supreme pursuant to au- relevant, "[a]lthough Rule 403 states thority. relevant is not Evidence which 16. may probative if val be excluded its admissible.” Fed.R.Evid. 402. danger substantially outweighed by the isue a district court’s decision as review issues, prejudice, unfair confusion of admissibility of evidence for abuse dis- misleading jury, considerations of Serafini, States v. cretion. United time, delay, pres or needless undue waste (3d Cir.2000). n. 14 of cumulative evidence.” entation Fed. R.Evid. argues government 15. The that “the fact that explanation for wearing bullet-proof gives an alternative Lee was vest vest, wearing having namely, that was he attempting he was to take off vest when day there protection since one earlier approached by it for Kraus is admissible be- Lt. area. a homicide in the create a had been the absence of fact would cause discretion, gitimate probative abuse of defined value the evidence ” ‘arbitrary (citing or irrational.’ In re the District Court’s limiting instruc- Lit., tion, PCB Paoli R.R. Yard F.3d say we cannot the decision to (3d Cir.1997))). Here, the Court’s rul- bullet-proof admit the vest evidence was It, certainly not ing was so infirm. arbitrary or irrational.

effect, recognized that the prosecutor

only providing with the inferential C. Lee’s Regarding Statements His step hoped would made: Prior Possession Firearms protect him- particular Lee had reason Lee next argues that the District Court against gun by wearing body violence self admitting erred in into evidence the state- carrying armor because he was himself a ments he made to during Kraus their in- Lee, gun. prejudicial While to it not was Specifically, terview. Kraus provided unfairly prejudicial suggest that bullet- following testimony at trial regarding proof guns accompany vests and often one those statements: another. typically Lee insisted he does not own or addition, In while we do think it guns. However, carry he did state that helpful bullet-proof view the vest as guns he has access a lot of and would 404(b) evidence, that any jury concern against anyone use them who threatens might misinterpreted have the relevance of him family. or his He that he stated the vest is laid to rest the District an Pickles, shot at individual named that Court’s instruction information relat- well Harris, known as Ernest only toed the vest could be considered for multiple occasions. He went on to say purpose.17 a limited The Court told the Pickles, true, that I arrested which is twice, jury, that it should consider the past, firearm. with And Mr. Lee only bullet-proof vest for wheth- “deciding claimed night, that that that mind, er defendant had the state of arrested, Pickles that Pickles was knowledge, necessary motive intent actually way on his gun with that to kill charged, commit the crime or did not com- acknowledged Mr. Lee. He that and said mit the acts for which he is on trial by time, long ongoing there’s a violent 644-45.) accident mistake.” (App. feud between Mr. family and Pick- Thus, limiting the Court’s instruction en- les.... Lee continued insist he couraged jury only to think of the vest did not weapons have in the car might imply for what it whether about 27th, I stopped when him on June but possessed a firearm when Kraus confront- compare that to a when he time him. ed stated that he fled from me before in the high degree Given the of deference we Hill District.... I do remember this. It reviewing owe when district probably court’s Rule would have been back in 2001 determination, 403 combined the le- or 2002----He further told that if I me Limiting co-defendant”); instructions limited to connected to fenses Unit- 404(b) Green, 151, They (3d Rule evidence. are of assistance ed v. States 556 F.3d 155 Cir.2009) in other (discussing limiting contexts where the needs to be instructions piece solely piece directed to view a admitting as context of evidence See, pertains specific e.g., United one exceptions hearsay issue. under Jones, 353, (3d Wilson, rule); Vazquez v. States 566 F.3d 359 Cir. v. 279 2009) (3d Cir.2008) (finding limiting (discussing court's instruc limiting use of tion alleged was sufficient because it "differentiated instructions the context Bruton violations). defendant's [the offenses] from the other of- 186 charge must consider night, I court caught him that have

would only purpose the limited guns the evidence caught him with would car, but, to insist he continued which is admitted. again, car guns in the on June that he had no Sampson, 980 F.2d United States v. stopped him. 27th when I (3d Cir.1992) (citing Huddleston 417-18.) short, Lee admitted (App. at States, 681, 691-92, United U.S. that he was guns, had access to that he (1988)). Only 99 L.Ed.2d S.Ct. that he had shot willing guns, to use first, third, steps fourth are con- ongoing he had an with whom someone here, undisputed under as it is tested him, feud, kill had tried to person two, are relevant.18 step Lee’s statements at an possessed that he had to stop Kraus tried him. earlier time when Proper Purpose i. statements attempted to exclude those If “evidence proffered Rule evidence under impermissible character, goes to or that defen show 404(b), they nothing but arguing that do crime, commit propensity dant had a gun posses- for unlawful propensity show a however, Where, it must be excluded. denied mo- sion. District Court prove also some fact evidence tends to tion and held the statements character, admissibility depends besides intent, prove knowledge “admissible to probative whether its value out upon mistake. Defendant the absence of and/or Id. at 887 weighs prejudicial its effect.” possession of has denied the firearms Harris, (citing V.I. v. 938 F.2d Gov’t 5.) (Id. question here.” at (3d Cir.1991)). government If the argues that appeal, again On acts, wrongful offers of other “it evidence impermissible his statements constitute clearly how that must articulate evidence 404(b). propensity evidence under Rule inferences, logical into a chain of no fits “To our review of the extent can the inference that link 404(b) ruling requires Rule district court’s committed ... because defendant interpret the rules of evidence our

us before, an he therefore is more [such act] but, plenary, if the evidence review is likely have committed this one.” Id. could have been admissible some cir 404(b) Nevertheless, inclusive, Rule “is not cumstances, we would review the district exclusive, emphasizes admissibility.” court’s decision to admit (citation omitted). Id. an abuse of discretion.” States v. United (3d Cir.2006) Daraio, presents argu- The several government (citation omitted). why as to Lee’s statements are ments 404(b). First, Supreme The has created four- Rule it admissible under step admissibility for the of evidence test says that Lee’s statements “relevant 404(b): by covered Rule key regarding and admissible is- [to] (1) (Appellee’s Ans. knowledge.” ] Br. sue[ must have proper the evidence 45.) (2) trial, however, 404(b); Lee’s was not about purpose Rule it must under (3) 402; he that he had a rifle pro- whether knew be relevant under Rule its Jeep. ques- There was no back seat his outweigh prejudi- bative value must its (4) Rather, 403; Lee’s cial Rule tion of accident or mistake. effect under accompanying undisputed as 22 and text. 18. At least it is insofar his motives. n. statements reflected See infra ‘Tes, simply jury, that there was no rifle sel told the the police defense did find the rifle the woods near and that the rifle recovered at where Mr. Lee Jeep his Thus, Jeep, abandoned his but the evidence will Apartments was not his. put show that he did not (App. there.” weighing Kraus’s trial about credibili 334.) government’s But the argument Lee’s, and, notes, against ty rightly again. quoted fails The comment does is inconceivable that if the be “[i]t amount to a statement that Lee testimony it [Kraus’s] lieved would have know possession the rifle was in his (Appel found that Lee acted mistake.” near vicinity; his was once more an out- Op. lant’s Br. at and-out denial anything that he had do government presses point, how- gun. with the ever, saying knowledge is at issue government far does better possession because Lee did not admit with theory motive as a of admissibility. any firearm. It relies on our decision in According government, the state Givan, (3d United States v. 320 F.3d 452 ments Lee made to Kraus reveal Lee’s Cir.2003), in which the defendant was con- for possessing motive firearms because he conspiring pos- victed of to distribute and that he admitted has no qualms about Id. sess intent to distribute heroin. using weapons anyone such against There, government at 455. we allowed the family, him threatens or his stated to introduce into evidence the fact that the he was in violent feud with Ernest prior felony drug defendant had a convic- (“The “Pickles” Harris. See App. at 216 accepted government’s argu- tion. We defendant’s regarding statements mo ment (to tive possessing firearms use them knew, it had to prove because Givan against anyone who would threaten Mr. prior discovery by troopers, to its family, ‘Pickles’, Lee or his such as ... quantity that a of heroin was hidden in with whom and family he his have a had the back of the car seat rental and that feud) long standing certainly is relevant possessed it had to that Givan prove his motive to a possess firearm in this it, heroin with intent distribute knowl- matter.”). agree with that assessment edge intent and were material and con- of the statements. Not did Lee claim at trial. tested issues that, at in point past, some Harris had Id. at 460-61. Unlike in Givan, however, planned to him and shoot he had shot at knowing Harris, where defendant denied he also admitted that the feud he family heroin and there was in the backseat of his his had with was ongo Harris Moreover, ing. Lee conceded that rental car he he “has and that intended to distrib- guns access a it, to lot of use would them has put knowledge ute not at issue. against anyone who threatens him or his is arguing he not know (Id. 417.) family.” Those statements there was a rifle in his back seat. His possess reveal that Lee had reason to a argument a straightforward is denial that weapon day in question.19 any gun was there. government also argues that Lee We note part final put his knowledge at issue when coun- his Lee’s statements to Kraus —in which Lee questions permissible 19. The Dissent purposes whether motive is listed in Rule 404(b) "why” helps "relevant in a case such as this not because [because] solve a crime, we are faced a highly situation where an- but because it is relevant swering ‘why’ help would solve show that a defendant a had motivation to crime____" (Dissent 7-8.) p. being Motive is one commit crime which he is counsel, matter, argument in be- defense firearms possessed that he had admitted Court, in 2000 or 2001 when Lee’s prior a occasion fore the District treated isolation, not, in conversation, him —does stopped Kraus single one statements as way in as Lee’s motive the same speak to counsel the state- whether defense treated pro- possessing guns to about statements analytically distinct. While de- ments his family ongoing feud and about tect his parse the a fense counsel did statements record, family. Based on the with Harris’s in limine to the District motion submitted whether, mat- as a factual cannot tell us, Court, no distinc- briefing in the before ter, 2000 or 2001 about the statement admis- tion was drawn between the various first two state- parcel part (See App. sions.20 family his his protecting ments about Assuming that this last statement Moreover, it is Harris. feud with violent can, matter, whether, separated be from procedural as a as a factual not clear us record, this, apparent is “Unless the reason is charged. In where Lee a case like from day a asserting purposes that he on the a list found in Rule never mere important added). question, 404(b) know that (emphasis it is Id. is insufficient.” possess gun. personal Motive, instance, had a motivation apparent is from the Indeed, ongo- involved in an record, someone entirely legitimate an and is basis during guns ing which feud—a feud upon could consider state- likely gun in far more to have a been used—is rifle, having Lee's reason ments about possession who is not in- his than someone despite his denials. Lee's statements See States volved in such feud. United being reveal that he was afraid of at- Kraus (D.C.Cir.2002) Cassell, specific person had at- tacked —who ("[I]n charged where defendant cases past tempted to him in the that he kill —and possession something, evi- with unlawful family's his arm himself for and his would possessed that he the same similar dence protection. things quite relevant at other times is often sum, compelling Lee had a reason to knowledge regard to the his and intent with himself, directly and that is relevant to arm charged.... posses- infer [A] crime could question of whether Lee had rifle motive, sion which could turn car. omitted). intent.”) (quotations inferred from points also out that the District Dissent the statement more fine The Dissent slices Court did to motive in its initial not cite ly did the defendant in his motion in than admissibility ruling on statements. dissenting colleague analyzes limine. Our However, (Dissent 199-200.) pp. the Dis- by dividing to it Lee's statement Kraus into jury that trict Court did instruct the it could (Dissent separate pp. 197- six statements purpose ... for the "consider three, 98), into leav while Lee had divided it deciding ... whether the defendant had the ing elements of the statement alto out certain charged----” to motive ... commit the crime matter, (see 180). gether App. at an initial As 596.) on (App. at That decision to instruct statement, separates the "[Lee] the Dissent By offering meaning. motive is not without an named Pickles” from shot at individual jury which the could motive as basis on way actually was on his with that "[Pickles] evidence, nec- consider the the District Court time, gun long kill there's [Lee] [and] to essarily proper was a concluded that motive family ongoing feud between Mr. Lee's violent more basis admission of one or (Id.) The faults us for and Pickles." Dissent statements. (See separating those two statements. Further, Sampson, the Dissent's reliance on However, p. 198 n. never Dissent court, if "[t]he in which held that district separated description into two that of the feud evidence, in- it must in the first admits statements, separate rightly so because stance, appellate court in ret- rather than the statements, them, Kraus recounted those why rospect, evi- articulate the reasons single appropriately be viewed as state can goes something to show other than dence 888, feud. That Lee shot at Pickles ment about the ac- 980 F.2d at does not character!]]” degree feud be immediately to which the also shows language that follows count for violent, just and not quote. say them was real and after We went to tween that on

189 2007) (“[T]he statements, assuming first Lee’s two test for harmless error argued further that this last statement was highly whether it probable that eviden separately to the District Court and so can tiary error did not contribute to convic here, analyzed separately it was be error Toto, (citing tion.” Gov’t v. of V.I. regarding to admit the third statement (3d Cir.1976))); 283-84 2A Federal possession 2000 2001 gun Lee’s because Lawyer’s Procedure, § 3:8444 Edition probative is not statement motive (1981) (“[Fjederal appellate courts are (or any permissible ground other listed more to willing find harmless error in the 404(b)). concerning Unlike the statements evidentiary rulings they area than are ongoing feud capa and his desire and procedure.” (citing other areas of Julander bility protect family himself his Co., (10th v. Ford Motor F.2d guns, his comment that he once had a Cir.1973))).22 not, years own, prove earlier does its conclusion, In government presented anything a present about motive to be logical “chain of inferences” between However, any admitting armed. error in prior weapons possession Lee’s and the third statement harmless in was charge rifle that does not suggest a mere admissions, overall context because propensity engage in weapons offenses. probable” “highly the admission Sampson, 980 F.2d at 887. Lee’s state- of Lee’s final statement did not contribute ments possessing guns protect about conviction, especially considering family and about his ongoing and violent just the fact that heard the family feud with previous Harris’s spoke two statements so relevant di show his rectly possessing Lee’s motive.21 See United motive for rifle (3d Ali, day Thus, question. States F.3d Cir. the evidence 404(b) guilt, a matter of heated words. It thus shows the evidence of ful even without degree possess high of Lee's motivation statements. gun. Moreover, trial, argued government 22. also contends entire interview with Kraus should exclud- statements are admissible evidence of his mo- ed, parsed not that sepa- it should be into six operandi. prosecution’s theory dus is as analyzed individually. rate statements to be fleeing follows: Lee admitted to from a traffic argument simply keep The defense stop years conducted Kraus earlier four wary holding out. all We should be district weapon because he had a in his vehicle. That analytical courts to an construct was not prior flight act shows Lee's method fairly presented at trial. weapons avoid possession. conviction for rationally have held that "[a] can infer error, discussing harmless our dissent- 21. from evidence that the a defendant committed ing colleague suggests that the rest of the prior crime in an unusual and distinctive guilt evidence of Lee's was not ''overwhelm- manner and evidence a second similar to, example, ing,” citing Digger’s equivo- for crime was committed in the same unusual cal actions near the rifle and lack of and distinctive manner that the defendant (Dissent 203-04.) pp. forensic evidence. Givan, committed the second crime.” However, 320 recognizing the Dissent not is F.3d at 467-68. nothing But there 1) was un- 2) original Lee fled stop; from the a coat driving away usual or distinctive about Lee matching covering what Kraus said he saw police back in 2000 2001. As Lee object long Jeep in backseat of Lee’s notes, fleeing stop act 3) ”[t]he from a traffic Jeep; found with the rifle near the being to avoid found with contraband is hard- Jeep admitted that he had abandoned found; 4) ly unique so as to create an inference near where the rifle was that Lee Jeep fugitive be a rifle in his here continued to until he was found because he had [before]____” hiding (Appellant’s in a couch. vehicle These not minor facts. are, combination, They particularly power- Op. Br. at limiting instruction gave under District Court purpose proper for a offered 404(b). as follows: Rule Now, evidence you have heard Prejudicial ii. Probative Value Ef- ... made certain statements defendant fect pos- past Kraus about his to Lieutenant Lee’s statem the relevance of Given when he was and use of firearms session under Huddle ents,23 next we determine July on 2005. This evi- arrested 403, the whether, Rule pursuant ston pur- a limited was admitted for dence substantially prejudice unfair danger of may this evi- only. You consider pose of the state probative value outweighs the deciding only purpose for the dence 1496. 108 S.Ct. U.S. at ments. 485 had the state of whether defendant owed substantial deference Given mind, or intent nec- knowledge, motive under weighing district courts charged in essary to commit the crime highly proba with the Rule combined indictment, or not commit the did particularly value of the tive evidence— accident by which he is on trial acts for Har feud with statements about his Lee’s Do not evi- or mistake. consider about Lee’s that revealed ris and what purpose. other dence for decision District Court’s motive—the course, you for to determine Of it is “arbitrary not statements was admit those evidence, and if you whether believe Servs., Univ. Rehab. or irrational.” See it, you accept you it do believe whether (“[We] F.3d at 669 cannot reverse may give purpose for the offered. You under Federal District conclusion Court’s weight you much as feel de- a conclusion is Rule 403 unless such ” served, only purpose for the limited but (citation omit ‘arbitrary or irrational.’ you. I described ted)). Indeed, statements reveal weapons day possess motive to not trial commit- for defendant in a highly probative question, may ting You these other acts. this, has like defendant case which the the evidence of these other acts consider possession together.24 all denied proof that the defen- as a substitute charged. dant committed crime You Limiting iii. Instructions may proof evidence as not consider this character en- that the defendant has bad Lastly, requires us to Huddleston commit crimes. charged any propensity that the District Court sure this evi- Specifically, you may for the not use jury to the evidence consider to conclude that because the de- which it was admitted. dence purpose limited may 691-92, the other fendant committed 485 U.S. S.Ct. outweigh substantially supra accompanying the relevance 23. See n. 18 and text. Appli- Lee made to Kraus. statements is, dictated Rule cation of standard colleague dissenting asserts that 24. Our definition, by judgment the call. That Dis- (Dis- prejudice" issue ] "never the of address! usefully have made that 202), trict Court could at to do p. but have endeavored sent description judgment explicit reiterate, call with more of it not an abuse so here. To "probative prejudicial value effect” of vs. its danger un- to conclude that the discretion lead us weighing of the evidence does not prejudice i.e., jury would fair the — experienced judge trial prior gun conclude that wrongly use Lee’s admission preju- apprehend failed to the nature of must possession and use to conclude that he probative charged values at stake. guilty dice and the been the crimes here— have

191 acts, must argues also committed the Lee the District Court’s in- charged in guidance act the indictment. struction provided no because it simply repeated litany permissible Remember, the defendant is on trial 404(b), theories under Rule the Court in possessing here for a firearm on 404(b) simply fact did more than list the question, in the date not for these other grounds. The instruction properly in- a guilty acts. Do not return verdict jury formed purpose of the limited for government proves the crime unless considering Lee’s admissions about charged beyond the indictment a rea- possession.25 To the extent that Lee is doubt. sonable arguing jury now could not have 595-97) (App. (quoting at Third Circuit instruction, understood the reject- we have Jury § 4.29 Model Instructions — Criminal ed such sweeping non-specific asser- (2009).) At the conclusion of the District Givan, tions before. See 320 F.3d 462 jury, Court’s instructions to the defense (“[I]t is a basic tenet ... jury that a is repeat counsel asked the the lim- Court presumed to have followed the instructions instruction, iting which did. the court gave preclude [and i]f we Now, time, for the challenges first the use of evidence admissible under Rule of that adequacy instruction. Because 404(b) because of a jurors concern that will trial, object any he did not review of the not be able follow the court’s instruc- plain instruction must be for error. See regarding tions its use we will inevitably Olano, 725, v. 507 United States U.S. 734- severely limit the scope per- evidence 36, (1993); S.Ct. L.Ed.2d 508 rule.”). mitted important Lee’s Pelullo, see also United States F.3d about possessing guns statements to pro- (“A (3d Cir.2005) party generally family tect his and about his feud with may assign jury not to a error instruction Harris guidelines therefore meet the object if jury he fails to before retires admissibility articulated Huddleston. or to distinctly 'stat[e] matter which They a proper purpose were admissible for objects party grounds 404(b) under Rule ” objection.’ (quoting Jones v. United motive possessing weapon; they States, 373, 387, 527 U.S. 119 S.Ct. 402; undisputedly relevant under Rule (1999))). 144 L.Ed.2d 370 finding District Court’s under Rule 403 danger has not shown error in that prejudicial of unfair effect regard, plain much Though less error. did not substantially outweigh proba- 404(b) evidence, implication bility Dissent is that even if the entire limiting the District Court's 404(b) instruction— litany already has been recounted. nearly which followed word-for-word our dissenting colleague right Our quite is 404(b) Circuit’s model instruction —is inher- note that comments to model in- (See ently inadequate. pp. Dissent at 201- (Dissent encourage practice. structions disagree. proper The list of eviden- 8.) However, pp. govern- 201-02 n. 404(b) tiary purposes set forth and re- motive; argued ment apparent motive is instruction, peated model which is the record; and the District Court instructed here, list that District used very on motive. Given the deferential stan- improper solely made because the Court was under, dard we are the instruction was ade- not as clear as it could have been in articu- quate. contrary To hold otherwise would be why lating proper purpose motive overarching principles one of we re- rely considering could on when Sampson, namely ferred that "[Rule op- Lee's statements to Kraus. We take this 404(b)] inclusive, exclusive, portunity judges and em- encourage district court specific grounds phasizes admissibility." delineate for admissi- 980 F.2d at 886. The that not arbi Court held evidence of tive of the statements was value admissible, irrational; Digger’s tracking was “as it trary and the District and [Lee], who prove tends to that had occu- charged the to consider Court twice pied Jeep, of the trav- purpose for the limited front seat had along where the and pathway admitted.26 Huddle eled coat which it is See ston, 691-92, rifle were and then on to apart- 1496. found at 485 U.S. S.Ct. complex.

ment This is circumstantial evi- possessed and [Lee] dence that removed Re- D. Prosecutor’s Statements (Id. Jeep.” coat from the at and rifle garding Digger 2.) however, added, that “the that he is to a argues entitled Lee next any agreed Government has eliminate prose- new on two trial based instances testimony that Digger reference in the First, contends cutorial misconduct. rifle, thus, paused at coat and further that, government’s closing, the during the reducing prejudice unfair [Lee].”27 prosecutor improperly referred to evidence (Id.) bloodhound, that regarding Digger, light pre-trial ruling, In of the Court’s by Court. been excluded District Harkins, handler, police dog officer Second, the prosecutor he asserts testimony Digger mention in his credibility of Digger vouched for the based Rather, “paused” and the rifle. at the coat experience hunt- personal his own Digger Jeep, he said that went from the misconduct, Lee, ing says That de- dogs. a flight steps, through very “down prived process him of due and a fair trial. overgrown asphalt parking weeded lot (Id. slightly to of the angle the left fence.” i. Background 458.) Digger He added “went motion, pre-trial sought Lee approximately down fence line Digger’s the evidence of exclude behavior (id.), feet” and that he came within “10 to irrelevant, or, relevant, if inadmissible (Id. 15 inches” and the of the rifle coat. Specifically, argued under Rule 403. Lee 460.) the evidence would make the Harkins, unlike argues “actually Digger believe that identified prosecutor disregarded the Court’s in- when, jacket fact, and the that’s not exactly argued structions and what 226.) (App.

what happened.” Lee also excluded, namely, Digger Court had probative value evi- attacked of the paused at The prosecu- the coat and rifle. dence, searching that the arguing officers said following: tor Jeep the area had contaminated the dog Digger [W]hat scene so that the could not have told us from Chief Har- person reliably tracked a scent. kins on the stand is that the suggests willingness carry 26. The Dissent Lee's statements Kraus motive for and Further, problematic they theory also because were re- firearm. the defense Kraus, by by rather than case been that Lee counted Lee himself. has not never said (See p. every Kraus claims Lee said. virtually 204 n. But what Kraus The dis- Dissent pute consistently instead has been about entered into evidence at a criminal confession whether should be allowed the statements trial made to someone else not on the evidence, defendant, they into not whether were made. very stand often police are made to confessions officers. plainly reliability problem meaning presume do in all The Court’s Here, frankly prejudice risk of was reduced. such cases. confessed unfair rabbit, straight necessarily of that car went see the so a was the driver we had straight park- across the steps, down the signal that we would tell the dog where lot, through went deposited gun, a ing saw what we and we saw. We would ultimately ... and es- fence then say, bunny. here’s the That meant to caped. rabbit, dog, we saw the here’s where think it the dog

we was. And would Dig- with is that happened Digger What come there and start to circle and from car, came from the went down the ger location, just going smelling to that steps, lot parking across the and to one direction and then smelling in the right did gun. Digger go other, dog could tell one person find fire- where the first those two tracks was fresher ingo originally, arm went went in that Digger rabbit direction went support path. exact Does this Lieuten- rather than where the rabbit came from. ant Kraus or does it contradict him? That never ceased to amaze me. (Id. 617; object Lee at when Or, you when dogs, hunted with bird made, statements were but argues those dog stop that that bird would a foot and statements, making that in those appeal particular bird, half a from this pheas- suggesting prosecutor Digger ant— rifle, paused which was forbidden Lee ruling. the Court’s earlier contends 615-16.) (App. point, At that “it improper prosecutor, [] objected, noting “personal counsel na- during arguments, closing bring testimony ture of the which doesn’t have any purported attention facts (Id.) anything to with do the evidence.” are not in prejudi- evidence and are The District Court sustained defense coun- (citation (Appellant’s Op. cial.” Br. objection, stating sel’s that “we should omitted).) (Id.) from that.” prosecutor move The alleged instance second miscon- complied and did not return to his remi- prosecutor’s Lee duct what calls the niscing. impermissible Digger, by “as- vouching for suring credibility Digger’s ii. Standard Review: Prosecutorial prosecutor’s] per- [the based own Misconduct experience hunting sonal us- tracking We review for abuse of discre (Id.) dogs.” ing specific statements ruling tion district court’s on a contem points to are follows: poraneous objection. United States you I may am hunter. Some of be as Brennan, (3d Cir.2003). hunter, experience well. As a I’ve had However, any non-contemporaneous objec past. dogs

with I’ve hunted with plain tions reviewed for error. Id. dogs beagles bird and I’ve hunted with objected portion While one majority of my life. It never prosecutor’s closing argument por ceased to amaze me we out when —the tion vouching that Lee now claims was dogs, with those their abilities. —he object did not part closing my When I hunt rabbit brothers involving Digger’s behavior near the rifle. father, my see would sometimes appeal It is here on that he rabbit, asserts jump we would rabbit and prosecutor committed running dog, would be out misconduct front. Our us, being paused by suggesting Digger much smaller than he couldn’t at the 194 Alleged Reliance in. The Prosecutor’s Thus, the rul- we review rifle.28

coat and on Excluded Evidence of dis- vouching abuse ing alleged cretion, prosecutor’s the we review and before, the issue Though silent on the near Digger’s behavior description prosecutor that the Lee now contends error. plain rifle for alluding ex by committed misconduct Digger that suggesting cluded evidence can comments prosecutor’s A (App. coat rifle. at at the and “paused” they infected if “so create error reversible understandable, previous silence is Lee’s the as make unfairness the trial with actually support the does not since record pro due a denial of resulting conviction prosecu the argument. At no time did 416 Donnelly DeChristoforo, v. cess.” Digger or hesitated paused tor state that 1868, 637, 643, 40 L.Ed.2d 94 S.Ct. U.S. prose the the coat and the rifle. While (1974). is criminal conviction “[A] 431 that came from the “Digger cutor did state aof on the basis lightly to be overturned stairs, car, park went the across the down alone, for standing prosecutor’s comments (Id. 619), gun” and lot the ing and to viewed or conduct must be the statements arguably that comes close while comment context; only doing can it by so prohibited by what District con prosecutor’s whether the determined Court, dog no there was assertion of the trial.” duct the fairness affected Instead, gun. alerted paused 1, 11, 105 Young, v. 470 U.S. United States interpretation prosecutor’s ar fair (1985). 1038, More 1 S.Ct. 84 L.Ed.2d Digger police away is gument that led over, the prosecutor’s “must examine we car, path, and to the area from down light offensive actions context and located, be where coat rifle trial, severity of assessing the the entire Apartments. Given heading fore conduct, in of the curative effect testimony Digger traced Harkins’s structions, quantum and the of evidence car to within inches of path Morton, against the defendant.” Moore v. discovered coat and police where Cir.2001). (3d finding “A 255 107 F.3d rifle, allowing Court’s District rever prosecutorial requires misconduct plain argument was error. prosecutor’s the error is harmless.” Bren sal unless “prosecu that a repeatedly We have held nan, “If error is F.3d at 182. 326 is entitled to considerable latitude tor constitutional, if [only] affirm we will argue the evidence and summation be determine that the error harmless that can be drawn reasonable inferences yond United States a reasonable doubt.” v. from that evidence.” United States (3d (3d Cir.1991) Werme, 241 Cir. Helbling, F.3d F.2d 2000). non-constitutional, omitted). (citation “If the error is latitude That encom probable path highly argument we will affirm when it is passes the had Digger to the tracked was evidence error did not contribute omitted). dropped the coat rifle the fence. judgment.” (quotation Id. However, objec- those are not preserved the was incorrect. argue that he 28. Lee tries prosecutor's pro- by objecting raising specific issue tions contention that suppres- posed during a use of this evidence prosecutor alluded to excluded evidence. hearing, reminding the its rul- Court of fact, sion objection specific was no there evidence, noting ing excluding the in his argues which Lee now contained statements closing argument prosecutor's own excluded evidence. interpretation bloodhound evidence touching” Argument manity. Perhaps iv. The the heightened ability of well-known, dogs to detect scent but the prosecutor may not A vouch prosecutor did not confine himself to that. credibility for of a witness based the on Rather, spoke personal from his own knowledge, prosecutor’s personal expe the experience dogs, with dating back his rience, Young, opinions. See 470 U.S. childhood, and reflected on the remarkable 18-19, Vouching S.Ct. 1038. 105 occurs “(1) things result, he had witnessed. prose when criteria are the As a the two met: testimony may cutor must assure the that have been influenced the credible; of a Government witness prosecutor’s is experiences, thinking that the (2) is on this assurance based either the prosecutor’s credibility views bolstered the prosecutor’s personal knowledge, or other of Kraus’s testimony and Harkins’s about not the information contained in record.” Digger.29 This is what rule against Walker, 180, v. United States F.3d 155 187 vouching prohibits. (3d Cir.1998). says While Lee However, even though prose

prosecutor vouched for the bloodhound ev cutor did idence, cross line improper into government argues that there vouching, a trial vouching new is not prosecutor was no because the warranted “merely an because it highly probable told anecdote about his own that the error experience Beagles dogs.” conviction, and bird did not contribute to Lee’s for 64.) (Appellee’s Ans. Br. at govern The several Helbling, reasons.30 209 F.3d at argues ment then it is “common 241. First and significantly, most dogs ability knowledge have an much prosecutor not did continue the vouching (Id. greater than humans to scent.” detect objection once an was raised and the Dis omitted).) (quotation at 65 trict Court prosecutor directed the move on.31 See United States Galloway, v. something Whether is “common knowl- (6th Cir.2003) 624, 316 F.3d 633 (holding edge” group largely to a of people de- course, prosecutor’s while pends, on statement concern composition ing group. amazing personal opinion his hunting improper, The abilities dogs are not common ken of all hu- did statement not warrant reversal insinuations, government argues suggestions, 29. The "is unclear especially as- prosecutor whether could guilty personal or not be sertions of knowledge[,]” United Edwards, vouching police (9th for dog, for a States v. was not 921 Cir.1998) (internal omitted), actually (Appellee's quotations in the witness matter.” I-know-dogs commentary Ans. Br. at To the extent that Lee here. complaining just prosecutor's not about vouching testimony for Kraus’s and Harkins’s 30. While vouching Lee describes as a consti- error, Digger saying prose- about but is also tutional we have “vouching held that vouching directly Digger, credibility cutor was that is aimed for an witness’s and is interesting question Assuming based on is raised. extra-record evidence is deemed problem non-constitutional error.” latter were the at issue United States v. one Inc., Dispoz-O-Plastics, (3d presented 172 we were classic F.3d with a case of Cir.1999) Zehrbach, (citing vouching credibility United testifying of a States (3d witness, Cir.1995)). F.3d it would still be a close cousin of vouching. prosecutor classic If vouching reliability Digger as an 31. Lee notes that the District scent, expert tracking using personal give any on anec- curative instruction after sustained However, Digger's expertise, objection. dotes to vouch for counsel nev- defense one, impermissible would be requested prosecutor "[i]t because is well er and the moved prosecutor settled immediately that a in a criminal case after the Court sustained the special obligation improper objection. has a to avoid argued government objected trial and Guideline s.32 because the defendant Lee’s conviction di- the District Court that objection and the court sustained the on). of violence under the Guide- to move Sec- was crime prosecutor rected the but, that “reck- ond, Digger’s appeal, concedes acuteness of sense lines alone, conduct, tes- is not through standing Harkins’s of record less smell was Dig- can Third, testimony consti- timony. type purposeful about conduct thus, vouching. [and required no a crime of violence tute ger’s behavior on its the rifle should vacated and inches of sentence dog Lee’s] went within concrete That re- way Apartments. purposes for the of case remanded evidence, general praise not specific and at 68 sentencing.” (Appellee’s Ans. Br. Mend, omitted).) is what on man’s best (citation nose impression on in all left an likelihood in are correct government Lee and the Digger did. jury, anything if about Following agreement about the law. their Fourth, specifically the Court instructed Supreme sentencing hearing, Lee’s lawyers is not that “what the said States, Begay 553 decided v. United you.” binding it’s evidence and not 137, 1581, 170 L.Ed.2d 490 128 S.Ct. U.S. (App. at that, (2008), effectively in held unnecessary Thus, despite wholly violence, the at as crime of crime qualify testimony Digger about vouching present potential “a serious issue must dog’s and comments about gratuitous injury” and be one that physical risk scent, not ability track a a new trial is violent, and “typically purposeful, involves highly probable it is warranted because 144-45, 128 aggressive conduct.”33 Id. that the misconduct did contribute expressly The Court distin- S.Ct. 1581. the judgment. involving negligence or guished crimes involving from those violence recklessness sentence, challenges arguing his 1581; 146, aggression. Id. 128 S.Ct. classifying in that District Court erred Johnson, v. 587 see also States United reckless his misdemeanor conviction for (3d Cir.2009). 203, Thus, follow- violence,” F.3d 208 endangerment as a “crime of mere ing Begay, a conviction for reckless- thereby increasing offense under level a crime of vio- in ness cannot constitute the career offender enhancement found 2K2.1(a)(2) (a)(4) Sentencing § lence.34 Johnson, See, e.g., 8. United employed edi- F.3d 211 n.

32. District Court the 2007 587 Baker, 443, Manual, (6th 453 Cir. v. 559 effective No- States F.3d tion of the Guidelines 1, 2009) (holding reckless en that Tennessee's vember 2007. dangerment qualify does not as statute Smith, violence); crime of United States v. Begay the defi- 33. While the Court addressed 781, (7th Cir.2008) (finding 786-87 544 F.3d felony” "violent under the Armed nition of (“ACCA”), that Indiana’s criminal recklessness statute we have since Criminal Act Career violence); not a United States felony” crime in held the definition of "violent (2d Cir.2008) Gray, 535 F.3d 131-32 and the of a "crime of the ACCA definition endanger (holding New York’s reckless Sentencing are in the Guidelines violence” violence). ment statute is not crime of enough precedent the for- “close under dealing endangerment Pennsylvania’s mer be in must considered stat- reckless Polk, convicted, ute, latter.” United States v. states under which Lee was omitted). (3d Cir.2009) (citations person 519 n. 1 a misdemeanor of commits "[a] recklessly engages degree if he second may place places another addressing conduct which 34. circuits the issue Other that, bodily danger Begay, person of death or serious similarly con- held after reckless injury.” § 2705. qualify duct a crime of violence. Pa. does not as Cons.Stat. Lee’s cial impact earlier-noted conviction for type conduct, concededly standing very reckless character evidence is real indeed. alone, qualify does a crime vio majority opinion refers to salient Accordingly, parties agree, lence. as the portions testimony of Kraus’s it is but sentence must vacated worth including totality. I number its re-sentencing. case remanded for points distinct for ease of reference. post-arrest Kraus testified in a inter- Constitutionality

F. The the Felm- view: In-Possession Statute 1. Lee insisted he does not typically Finally, argues the felon-in- carry guns. However, own or he did possession statute is unconstitutional. He state guns has access to a lot of however, recognizes, that we bound our Singletary, decision United States v. (3d Cir.2001), F.3d 198-205 use against anyone would them constitutionality which we confirmed him family. threatens or his statute, felon-in-possession and he ac- 3. He stated that shot at he an individ- knowledges presents that he this issue Pickles, ual named who was well known preserve challenge “to to the consti- Harris, as multiple Ernest occasions. tutionality of felon-in-possession stat- [the say 4. He went to that I arrested Supreme (Appel- ute] for Court review.” Pickles, true, is in past, with a Op. reject Br. at lant’s therefore firearm. And Mr. Lee claimed that on that argument without further discussion. Harris, that night, Ernest Pickles arrested, was III. Conclusion that Pickles actually was way on his with gun to kill Lee. Mr. above, For the reasons discussed we will He acknowledged that and said that affirm Lee’s conviction but will vacate his time, long there’s a ongoing feud violent and for re-sentencing. sentence remand Mr. family between Lee’s Pick- and les.... RENDELL, Judge, dissenting. Circuit respectfully

I I dissent because conclude 5. Lee continued to insist that he did the District weapons Court should have not have in I the car when testimony 27th, admitted Officer Kraus’s stopped con- him on June but he did when, Lee’s cerning post-arrest statements re- compare that to a time he stated garding prior experiences guns, with that he fled from me before in the Hill feuds, past experiences violent and District. He if I asked me remembered Kraus, Officer and that this error was time that I him chased lost I acknowledge harmless. this is a car Morgan that started on in Street close case and that our remembered, standard defer- hill. As I was he stated ential, I but submit that him, when it comes to that I pulled my behind I had —at guns, careful, prejudi- we must be for the car, police time marked I when Although majority report the District Court and the purportedly statements to, opinion respectively, refer "Defendant’s post-arrest. made to him These were not by statements made him at the time of his statements, they transcribed nor were state- arrest,” App. and "Lee’s Statements Re- words, report ments in Lee's own and the was Firearms,” garding His Prior Possession part not made of the record as far I can as Majority Op. question the. evidence in tell. actually testimony regarding Kraus’s Officer “highly probable” it was Hill because patrol

inwas uniform not contribute him, offending statements did I ac- District, was behind guess I disagree. respectfully I him, my the verdict. I had white cording to like spot- lights, which illumination always I judge, As trial court was bar of the light on the lights contained past posses- about references concerned access, he and when we can car which cases, guns use of sion or he claimed that lights, he saw those past or use possession references to pull him thought preparing I was drugs drug While often admissi- cases. motioned me stopped, he over. So purpose under going proper ble to a for directions alongside of him ask 404(b), evidentiary stand- Rule from an I remember that. Chauncey Street. point, type evidence makes this say he had—I had He went on (i.e. jury’s using type job avoid this I had of the car because gotten out branding the defendant as evidence as approached, as I marijuana and smelled criminal) difficult, very as a drug gun or I do remember the ear took off. And practical matter. probably back this. It would been I know at the in 2001 or 2002. didn’t type potential impact While con- time it Mr. Lee. There no can contained of evidence nonetheless be point, I did remem- nection at that but jury, specific instructions ber that. guns from evidence of prejudice resulting if I He told me that would 6. further Advisory As the drugs and is immense. night, I have him that would caught 404(a) indicates, Note Rule Committee’s to car, him caught guns with epitomizes evidence type this of character but, he again, continued to insist that he “prejudice” what is all about: 27th had no the car on June guns slight probative Character evidence is of I him. stopped when may very prejudicial. It value and majority The concludes that App. 417-18. from to distract the trier of fact tends initial to the facts that Lee references question actually hap- what the main use to guns to and would them access It pened particular on the occasion. (statements 2), family protect his and subtly trier of fact to reward permits the ongoing and that had an violent feud man good punish man and to the bad (statement with “Pickles” Harris Ernest respective because of their characters 4), as of Lee’s probative were admissible case what the evidence in the despite “motive,”2 outweighed and actually happened. shows by the reference to his prejudice caused 404(a) Advisory Fed.R.Evid. Committee’s It reasons that the prior gun possession. (statements 6) potential for such Note. I submit that 5 and passage rest of the great and especially “distraction” is but that its should not have been admitted drug trial cases. require not new admission does prior grave act evidence intro- explicitly the most bad majority The does discuss 2. 3, statement that supposedly of statement that he admission is that Lee stated duced Pickles, at an individual named Lee "shot It is not clear how had shot Harris. Harris, known Ernest who was well multiple anything 'adds' fact that Lee shot at Harris occasions,” folding instead this state- possessing gun, relevant to Lee's motive analysis regarding the ment its "violent into Lee and Harris are once it is established that Majority Op. feud” Lee and Harris. between ongoing feud. engaged in an violent significant, given perhaps This is act governed by Prior bad evidence is a rifle possessing particular on this occa 404(b), which, notes, majority Rule as the sion. majority rightly The criticizes the test four-step requiring “proper purpose” involves courts theories offered relevance, (knowl proper to purpose assess other Government than motive intent, weigh prejudice against probative edge, mistake, value absence of modus 403, appropri operandi), under Rule offer an recognizing only state limiting ate charge jury. may Huddle ments that properly have been admit States, ston v. United 691- ted are U.S. those that could be relevant (1988). 99 L.Ed.2d 771 motive. S.Ct. The other statements Offi Advisory Committee cer testimony answering situation where “why” would above, also heard Officer Kraus help possession. solve crime of There testify that Lee him told that he had ac- is suggestion no in the record that Lee was cess to lot of guns,” “a that he has shot at on his to a way confrontation with Ernest Ernest “Pickles” “on multiple Harris occa- Harris, protect “Pickles” family, to sions,” that he previously has fled from or to do anything with a gun else that Officer Kraus because Officer Kraus particular all, If moment. relevant at marijuana coming car, smelled from his family Lee’s great feud is not of probative he did guns during his car value respect with the question to previous this encounter with Officer whether he fact in possession was of a other, colorful, Kraus. None of very these particular on this occasion.4 1, 3, 5, statements —which I have labeled togo Second, Lee’s motive for possessing and perhaps importantly, most 6— guns in general, let alone to his motive for the District Court not did rule that these majority 3. The parsing probative takes me to 4. task for We have noted that the value of not, way the statements in a did defense prior significantly bad acts “is evidence less” 20, Majority Op. pp. n. since 188-89 when the defense is that the did defendant not urged urge defense total I exclusion. But perform charged at all. act United States total exclusion And as well. the statements Daraio, (3d Cir.2006) 445 F.3d parsed only are for ease of reference and in Jemal, (quoting United States v. majority's analysis order to follow the (3d Cir.1994)). 1273 n. 3 distinguishes among them. times ingly possessed firearms at other is as relevant were admissible statements Instead, ruled prove knowledge District Court and intent.” proper motive. were 5. App. statements “admissible intent, knowledge the ab- prove and/or majority convincingly argues, the As the majority App. The of mistake.”5 sence admit- knowledge and intent rationales for “knowledge” rejects the quite properly not hold water: ting the statements do admissibility, but concludes theory trial ... was not about whether he Lee’s mo- far “government does better he in the back seat knew that had rifle Majority theory admissibility,” tive as Jeep. no question of his There was its own theo- substituting in effect Op. Rather, or mistake. Lee’s de- accident might ry why as to some of statements no rifle simply fense was that there was admitted. The ma- permissibly have been rifle Jeep in his and that the recovered mo- jority’s conclusion as to relevance to not Apartments at the his.... Lee by fact we tive is undermined put knowledge has not at issue. Lee is Court, ruling review the of the District not arguing not know there “[ejvidence that Defendant which held argu- rifle in his seat. His was a back possessed at other knowingly firearms straightforward ment is a denial that proper prove knowledge times is any gun was there. not excludable under Rule intent and Thus, go- Majority Op. 186-87. 404(b).” ruling 5. This is that we App. knowledge ing either or intent al- hypothetical are to review—not some by as required “relevant” Huddleston’s ruling that District Court ternative majority implicitly a fact the prong, second It true that might have made. in a recognizes Majority Op. footnote. argued theory, the motive Government therefore, conclude, n. 18. I that the two Court, briefly, District and it before the an improper statements were admitted for us well. theory advances that before purpose. The District Court did not admit the state- justify might able somehow ments as relevant motive. In- statements, admission these albeit for deed, theory this ad- the fact that reason, wrong Government, by vanced but not relied importance placed having we have ruling, District in its upon jury’s trial court draw the attention to the actually suggests that the District Court aspect specific of the case to which the rejected Accordingly, rationale.6 In particular evidence relates. United must consider the District Court’s stated Sampson, urged the admitting for statements: States v. Government rationale the “[ejvidence prior drug admissibility that that know- the of conviction Defendant had jury 5. The District Court did to "state of ed the that it could consider the state- refer mind, mind, motive, knowledge, knowledge, its motive or intent” in for state of ments intent, jury. App. the instructions to or absence of accident mistake. or App. suppose reason 596. But there no that Court concluded the District for "By offering majority as 6. The writes: motive example, absence accident or mistake was a jury the a basis on the could consider Rather, evidence, proper basis for admission. seems necessarily the con- District Court simply reciting that the District Court was a proper cluded that motive was basis litany purposes. potentially proper More admission of one or more of statements.” point, Court concluded Majority Op. Although to the if the District this infer- n.19. admission, proper theory, that basis for might ence malte it is not motive was sense appropriate here. The Court instruct- it should have said so. District demonstrating “plan simply repeating litany as or scheme” and entire per- an “refuting 404(b), accident mistake” defense. missible theories under Rule (3d Cir.1992). 883, 885 The trial judge’s gave instruction inade- court indicated that the evidence “fall[s] quate guidance. It also failed limit purview exceptions within listed government it prof- theories 404(b),” and instructed the support fered in admission “[y]ou may prior consider defendant’s evidence. they proof convictions relate to Id. proba- at 889. As to the balancing motive, intent, opportunity, preparation, prejudice, tive value versus we noted:

plan, knowledge, identity, or absence of When a court engages a Rule 403 accident, any and not for mistake or other balancing and articulates on the record a purpose.” Id. at 888-89. We reversed explanation, rarely rational we will dis- remanded, after concluding both Where, however, ruling. turb its ruling instructions were court failed to perform analysis, and, flawed, furthermore, the Rule where its apparent rationale is not 404(b) balancing required under Rule record, way there no to review its apparent was not from the record. Id. discretion. Regarding the trial court’s ruling, said: (citation omitted). Id. at 889 We conclud- court, if the evi- district admits ed: instance, dence, inmust the first rather sum, we are not holding that than appellate retrospect, court in of Sampson’s prior drug convic- why articulate reasons the evidence also tions is not relevant to a proper purpose. goes show something other than char- simply hold a legitimate rele- apparent acter. Unless the reason is vance has not properly been record, demon- from the a mere the pur- list of 404(b) strated the record does not poses found in Rule is insuffi- show that the court conducted Rule put cient. district court must trial, balancing. In the if new record, chain of into inferences none government again tries to introduce the of which is the inference that the defen- evidence, it carry must the burden of dant a propensity has to commit this proffering a rational chain of inferences crime. and the district court must then evaluate Id. at As to 888.7 the instruction to the given reasons in the context of the jury, we said: developing give case and the rationale This instruction does cure the error. ruling. its willWe reverse and re- government Where has not clearly mand for new trial. why articulated reasons the evidence is Thus, relevant to legitimate purpose, there Id. Sampson we held in is no realistic basis believe that the identify district court must the proper pur- jury cull proper pose will the jury inferences and and instruct exactly the as to material facts from the By evidence. how it use should the evidence.8 That did Contrary majority's 7. to the contention 8. Jury that The Third Circuit Manual of Model point, same Instructions makes this instruct- the reason admission would have been ing precise judges purpose to the record, "describe or apparent Majority Op. from the 188 n. purposes for which the other act evidence 19, readily I submit the would not admitted," "[p]ick and of to those the understand that the feud evidence was reasons, following, apply,” or other fol- to, to, only relevant and Lee’s motive. reasons, example by including lowed list of 202 Instead, to the “motive” statements. inadequate as the District here.

not occur that, if rele- arguably I even reciting the lita- also conclude instructed purpose, the extreme- may proper “You vant to some ny possible proper purposes: of these statements ly nature of purpose prejudicial only for the this evidence consider under the outweighed any probative value had the defendant deciding of whether the never prong. majority 403 ad- or intent Rule mind, motive knowledge, of state but I charged prejudice, issue as dresses necessary commit the crime above, pertains when crime noted indictment, acts or not commit did guns suggest painting I the defen- by or accident for which he is trial past effectively and dant’s character as Rule 403 bal- App. 596. The mistake.” is indeed. As to the gun-filled prejudicial single Dis- ancing was a statement statements, they nothing “Additionally, rest of did ruling: such trict Court’s notion that is not other than reinforce the highly is and ex- probative possesses guns, type of prejudicial person Rule 403 as its cludable under carries them his people, its shoots them at outweigh probative does not val- effect with, evades, car, run-ins and law and has App. 5. ue.” testimony prop- This had no enforcement. is Although our standard ex- review value probative er whatsoever. purpose or deferential,9 tremely should be hard- we damning nature of these state Court’s Given pressed approve of District ments, admissibility very even I think it difficult to conclude ruling as to the the introduction of these statements the District Court motive evidence when majority correctly identify the con- was harmless. The purpose, failed to correct test for ‘harm balancing appropriate it an its discretion when makes error abuses nearly Court’s “followed word-for- instruction States, 81, v. U.S. 404(b) law.” United 518 Koon our word Circuit's model instruction.” 2035, (1996). 99, Majority Op. Although it is 116 S.Ct. 135 L.Ed.2d 392 191 n. 25. true

203 case, rights,” trial as in this is of the record tional without relation to the ‘had “whether the error substantial judgment verdict or would be almost to determining injurious effect or influence work a vacuum. In criminal causes ” jury’s verdict.’ United States v. Toliv that outcome is conviction. This is dif- (3d Cir.2003) er, 607, (quoting F.3d 330 612 ferent, may be, guilt or from in fact. It States, 750, v. 328 Kotteakos United U.S. law, guilt in by is established judg- (1946)). 66 S.Ct. L.Ed. is, of laymen. question ment And the These two statements the test are both they right not were in their judgment, Supreme reasoning borne of the Court’s regardless or upon error its effect Virgin Kotteakos. Government of It the verdict. is rather what effect the Toto, Islands the case from which the reasonably may error had or be taken to test, majority draws its noted that upon have had the jury’s decision. The required apply thus “[w]e are this thing crucial is the impact thing of the test of case the Kotteakos. We must de wrong men, done on the minds of other cide ‘whether the error itself had substan own, on not one’s in the setting. total (on jury.) tial influence minds so, doubt, This must take grave or if account what the If one is left in [sic] ” them, the conviction cannot stand.’ 529 error meant to singled F.2d not out and Kotteakos, (citing alone, 328 U.S. standing but in relation to all else 1239). “stating also S.Ct. noted happened. And one judge must it,” id., is than applying test easier by own, others’ reactions not but which remains true even if we focus might with allowance for how others question it is highly whether regarded generally react not be probable evidentiary not error did acting without reason. This is the im- is contribute conviction. It worth re difference, portant but one easy ig- turning guidance, Kotteakos for as the nore when the guilt sense of comes Supreme eloquently expounded strongly from the record. way we, in which proper reviewing If, done, when all is said and court, should whether an error assess conviction sure that the error not determining the context “harmless” jury, slight influence the or had but very the effect of in a errors criminal case: effect, the verdict the judgment appellate [I]t is court’s function stand, except perhaps should where the guilt to determine or innocence. isNor departure is from a constitutional norm speculate upon probable reconvic- a specific Congress. command of But tion according and decide how the assurance, say, if one cannot fair speculation out. Appellate judges comes pondering after all happened with- escape impressions. cannot such But stripping out from erroneous action they may not make them sole criteria whole, judgment was not judg- reversal affirmance. Those substantially swayed error, by exclusively jury, ments are for the given impossible to always necessary minimum conclude substantial rights legally inquiry sufficient to sustain the affected. The convic- by merely tion cannot unaffected error. whether there was result, enough support apart appel- But does not mean that the phase affected the error. It is escape altogether taking late court can rather, so, even weigh account of the outcome. To whether error itself so, against setting error’s effect the entire had substantial influence. If or if doubt, that the error was not harm- thus conclude grave the conviction is left one that a new trial warranted. less and stand. cannot 763-65, S.Ct. 1239. 328 U.S. solely not look

Accordingly, we quantum of the evidence quality or (“whether sup- enough to there was

guilty 1239), result,” 765, 66 S.Ct. id.

port did the error have “substan- “even so” but Jr.; KERCHNER, Lowell T. F. Charles Here, the other evidence tial influence.” Patterson; Lenormand; Darrell James overwhelming; every as- guilt not was Nelsen, Jr., Appellants H. Donald judgment Digger’s call: was Was pect v. rifle reaction a clear identification II, OBAMA, Barack Hussein President what Lee’s rifle? Was woods was America, Elect of United States car, during Kraus saw Lee’s Officer of the States of President United stopped, it was a rifle? Lee was brief time America, Individually; and United woods; in the he was found never seen America; Of United States States couch, in a apartment, hiding two weeks an Senate; Congress; United States or later. There was no forensic evidence Representa United States House of gun with the eyewitness who ever saw Lee tives; Cheney, B. Richard President of identify or could question, Senate, Presiding of Joint Officer nothing Lee’s. If the knew about as Congress, Session Vice President of Lee, likely would it been more have Individually; the United States and acquit? and have had reasonable doubt Nancy Pelosi, Speaker of the House detailing exten- Did statements Individually. and experience guns, prior and crimi- sive Kraus, sway activity nal known to Officer No. 09-4209. “If, jury?10 all is or influence when of Appeals, United States Court done, said and the conviction is sure that Third Circuit. influence jury, not the error did effect, very slight the verdict and the but Under Third Circuit Submitted judgment should Id. at stand.” 34.1(a) LAR June 2010. of the of the light S.Ct. 1239. nature July 2, Filed 2010. evidence, the nature other “conviction,” statements, I do have this am in “grave left doubt.” I would omitted). noting It is worth since state- Fulminante dealt with the admis- confession; here,, presented coming we ments were sion of a coerced have However, himself, dif- no additional concerns arise. In a issue of coercion. because it context, (whose credibility Supreme reported by stated Kraus was ferent has case), of a defendant come from the a central concern in and it "admissions himself, knowledgeable writing acknowledged by actor the most committed Lee, unimpeachable arguably about we face concerns as to source information similar reliability: past Certainly, "the risk that the confession is conduct. confessions unreliable, profound impact profound impact jury, coupled with the on the so much so jury, put upon the re- may justifiably ability doubt the confession has its quires reviewing court to exercise extreme them out of mind even if told do so." Fulminante, 279, 296, determining 499 U.S. caution before that the admission Arizona (1991) (citation at trial was harmless.” Id. S.Ct. 113 L.Ed.2d 302 confession Notes Rule Kraus’s probative have no 404(b) state while fail evidence other value and ‘relevance’ test Hud wrongs prove or acts is entirely. They “not admissible dleston should have been suggesting character as basis for excised from what the heard.3 particular inference conduct on a oc The other two portions of Officer it,” conformity casion was such testimony, Kraus’s referencing the facts “may pur be offered for another guns that Lee would protect use his motive, pose, as proof opportunity, such family and that he in an ongoing violent on, so does not fall within the Harris, feud with Ernest present “Pickles” prohibition.” None of the statements here closer calls. majority found these proper admitted for a purpose. probative statements admissible as all, First of part the statement Lee’s I “motive.” am less sure. majority probative has held is First, questionable isit that “motive” is motive, regarding willingness to use relevant in a case such as this. Lee did guns family protect and the ongoing contend he had no to pos- reason engaged, feud which he is a small sess a gun, and we are not faced with a part of what the As heard. noted

Notes

with reference notes duct the Rule highly probable is “whether it is purpose, jury’s lessness’ the correct draw evidentiary error that even the contribute purpose attention to the Op. Majority (citing conviction.” majority permissi- concludes was Ali, F.3d 392 n. 3 namely, motive. I conclude United States v. purpose, ble (3d Cir.2007) Toto, (citing of Rule light language Gov’t V.I. plain (3d Cir.1976))). But, Sampson, the Dis- 529 F.2d 283-84 ruling and our we an appropriate the rea- have also stated that trict Court did err here because instructions, affecting balancing standard for “errors nonconstitu- soning, motive, mind, intent, op- used are knowledge, that the words District Court state of instruction, portunity, preparation, planning, oper- modus in our model found Circuit’s mistake, andi, absence of accident failed do District Court manual Jury identity. Third Circuit Mod.Crim. Instr. advises, pur- namely, precise to "describe the added). (emphasis to the The Comment 4.29 pose” act for which the other evidence was Model stresses that “in- Instructions also admitted, "pick” ap- reasons laundry merely struction should include ply- permitted act evidence. list uses of other Rather, specifically state the limited should While be deferential trial purpose for which the other act evidence discretion, here court and review abuse Jury Third admitted.” Circuit Mod.Crim. any of the District Court did not admit Graham, (citing 4.29 cmt. Michael H. Instr. proper purpose under Rule statements for Evidence, § Federal 404.5 n. 56 Handbook Rule an and violation abuse of (5th ed.2001)). "A court discretion. district definition majority suggests that the District

Case Details

Case Name: United States v. Lee

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 14, 2010

Citation: 612 F.3d 170

Docket Number: 08-4427

Court Abbreviation: 3rd Cir.