*313 OPINION OF THE COURT
Appellant Michael Murray was convicted following a jury trial of an intentional killing in furtherance of a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848(e)(1)(A); conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1); and distribution of and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In this appeal, Murray argues that the district court erred in (1) admitting testimony under Fed.R.Evid. 404(b) and 403 that he had committed a murder not charged in the indictment; (2) admitting under Fed.R.Evid. 608 evidence supporting the credibility of the only testifying eyewitness to the events immediately preceding the charged murder; (3) denying Murray’s motion to excuse for cause a juror who had read a newspaper article about the ease; and (4) denying Murray’s motion to suppress the testimony of a jailhouse informant. We hold that the district court erred under Fed.R.Evid. 404(b) and 403 in admitting testimony about the uncharged murder and in admitting evidence about specific instances of conduct supporting the credibility of the eyewitness, in contravention of Fed.R.Evid. 608(b). We conclude that these errors require reversal of Murray’s murder conviction but that they are harmless with respect to his convictions on the other charges.
I.
Murray was indicted and arrested in August 1992. (App. 13) The superseding indictment on which he was tried alleged that Murray (whose “street name” was “Solo”) and co-defendants Jonathan Ray Bradley (“Fresh” or “Johnny Fresh”) and Emanuel Harrison (“Paradise”) intentionally killed Juan Carlos Bacallo on January 28, 1992, while engaging in and working in furtherance of a drug distribution CCE. (App. 64) Bradley was alleged to be the leader of the drug ring, which imported cocaine from New York City in cookie boxes for sale in the 1400-1600 block of Market Street in Harrisburg. (App. 65-66)
In August 1993, the government filed notice that it would seek the death penalty against Murray. (App. 73-75)
See United States v. Bradley,.
Murray’s trial lasted four days. The government offered strong evidence concerning his drug distribution activities, and we will not recount that evidence here. However, because, of its relationship to Murray’s two key evidentiary arguments, we will summarize the evidence relating to the murder. The government presented evidence that Bacallo, the murder victim, had been working for Bradley’s drug ring as a street-level dealer and that he owed Bradley money for drugs he had been “fronted.” (App. 786). *314 Marguerite King, Bacallo’s girlfriend, testified that a week before he was murdered Bacallo approached Bradley to inform him that he was quitting the drug business and that Bradley responded by pointing a sawed-off shotgun at Bacallo’s head and telling him that “once you are in this business, you never get out.” (App. 787, 791) King admitted that she had lied to the police when she was questioned shortly after the murder, explaining that she had been afraid to tell the truth because Harrison was with her. (App. 788-89)
Jay Williams testified that on the night of the murder, Bacallo, Harrison, and he went to a bar even though Bacallo did not want to go. (App. 803-04) Williams said that he and Harrison asked Bacallo if the reason he did not want to go the bar was because “you don’t got Fresh’s money,” but Bacallo denied this. (App. 803-04) Williams testified that inside the bar Bradley and Murray “smack[ed]” Bacallo repeatedly and that Bacallo, Bradley, Murray, and Harrison left the bar and got into a taxicab because, as Bacallo said, “[t]hey want me to do something for them.” (App. 805-06) Williams admitted that at the time he testified he was incarcerated for drug trafficking, that he had lied shortly after the murder when he gave the police a statement (in which he denied any knowledge of anything relating to the murder), and that he had been smoking marijuana and drinking alcohol on the night of the murder. (App. 799, 807, 811-12)
Richard Brown, a taxicab driver who was “friends” with Murray, testified that he picked up Bacallo, Murray, and Harrison (but not Bradley) in his cab on January 28, 1992, and that, at Murray’s direction, he drove them to a deserted part of State Farm Road in Susquehanna Township. (App. 717-19) He gave the following account of what happened next. Murray told Brown to pull over and instructed Bacallo to get out of the car because “he was going to make him walk.” (App. 719) Harrison, whom Brown had noticed was carrying a sawed-off shotgun beneath his coat, remained in the car. (App. 719) Shortly after Murray and Bacallo walked away from the ear, Brown heard gunshots. (App. 720) A few seconds later, Murray got back into the car, carrying a .45 caliber pistol, and said something to the effect of “that is what someone gets for being in violation.” (App. 720) “[Sjeared as hell,” Brown drove Murray and Harrison back into town and then returned home. (App. 721-22) When he got home, Brown told Stephanie Stewart, with whom he was living at the time, what had happened. (App. 722)
Brown admitted that he had been working as an informant for the Harrisburg Police Department at the time of the murder, but that he had not reported what he had seen in the early morning of January 28, 1992, until July or August of that year. (App. 723) Brown explained that he waited so long “[bjecause quite frankly, I was afraid, not only for myself, but for the people I cared about the [sic]. My mother was dying of cancer. I didn’t want any accidents to happen to any of them. I cared about my children.” (App. 723) Brown admitted that he had been using marijuana and cocaine for 27 years and that he had been convicted of cocaine possession and theft of services. (App. 725)
Stewart testified that when Brown returned home the day of the murder he told her that “I just saw Solo kill someone.” (App. 767-68) She stated that when she read about the murder in the newspaper she asked Brown, “Is this what you were talking about?” and that he replied in the affirmative. (App. 776)
After Murray cross-examined Brown, the government called Lt. John Goshert, a Harrisburg police officer, to testify in support of Brown’s reliability. Murray objected to Goshert’s testimony on the ground that “the character of [Brown] for truthfulness” had not been “attacked by opinion or reputation evidence or otherwise,” Fed.R.Evid. 608(a), and that even if it had, Lt. Goshert’s testimony violated Fed.R.Evid. 608(b)’s proscription on proof of specific instances of conduct by extrinsic evidence. (App. 822, 826-29) The court overruled Murray’s objection. (App. 829)
Lt. Goshert testified that, as the officer in charge of the Harrisburg police drug enforcement unit, he had utilized Brown as a confidential informant since 1988. (App. 834-36) Lt. Goshert stated that in his opinion Brown was “extremely reliable” in pro *315 viding accurate information. (App. 836) Lt. Goshert explained that the Harrisburg police had “made” “[i]n excess of 65” cases and had obtained “numerous” search warrants as a result of Brown’s services as an informant. (App. 836)
Robert McCallister, a Susquehanna police officer, testified that he discovered.Bacallo’s body on the morning of January 28, 1992, and found seven shell casings nearby. (App. 648, 651-52) James Rottmund, a ballistics expert, testified that all seven casings were from the same .45 caliber gun and that the shots were fired from a distance of at least five feet. (App. 683-84) Dr. Isadore Mihalakis, a medical examiner, testified that Bacallo had suffered eight gunshot wounds: one to the right thigh, three to the right buttock, two to one hand, one to the other wrist, and one to the head. (App. 702-05, 707) Dr. Mihalakis testified that all eight wounds (which, he said, might have been caused by seven shots) were inflicted from behind, that the shot to the head was the final one, and that it occurred with Baeallo in a prone position. (App. 705, 710) He concluded that the manner of death was homicide. (App. 713)
Randy Drawbaugh and Sean Proffit, both jailhouse informants, testified as well. Drawbaugh testified that Murray had told him that “he shot a guy named Carlos” because “Carlos” owed him money. (App. 851-52) Proffit testified that Murray told him that he was going to “get” all of the witnesses against him when he was released from jail and, in particular, that “there was a certain witness named Juice [Xenophon Singleton] that he was going to get and throw his baby off the roof of a building.” (App. 870) Drawbaugh and Proffit were impeached with their criminal records. 1
Murray’s Rule 404(b) and 403 arguments are based on the testimony of Jemeke Stakes (“Quest”). Stakes testified that, while in New York City, he met Bradley, who introduced him to Murray. In August 1991, Stakes said, he went to Harrisburg to sell cocaine at Bradley’s invitation. (App. 463-64) Stakes was indicted and arrested at the same time as Murray and pled guilty in January 1993 to conspiracy to distribute cocaine, for which he was sentenced to 24 months’ imprisonment. (App. 19, 449) At the time of Murray’s trial, Stakes had recently completed a combined 38 months of imprisonment on the federal conviction and related state charges. (App. 446-50) Stakes testified that Murray committed an uncharged murder in New York City in 1991. According to Stakes, in the middle of August 1991, “[a] guy by the name of Howie came by Mr. Bradley’s store in Manhattan and said his little cousin was having problems with this guy,” referring to a dispute over drug territory. (App. 457) Bradley told Howie that “me and Solo will take care of it,” and he asked Stakes to “go along.” (App. 457) Stakes explained that “Fresh [Bradley] had me go along to see how his reputation is established because, you know, he has a rep in New York as being a shooter, and, you know, a fairly large drug dealer.” (App. 458) On a Sunday afternoon, “Howie” drove Bradley, Murray, and Stakes in a van to a housing project at 169th Street and Washington Avenue in the Bronx to look for a “heavy-set” Panamanian man. (App. 459) Stakes testified that Bradley and Murray wrapped their faces in towels so that only their eyes were visible and that all three of them left the van while Howie remained in it. (App. 459) Then, according to Stakes, “Solo [Murray] went up to the guy” while “Fresh [Bradley] stood across the street.” (App. 459) Stakes testified that “Solo went up to the guy and pumped four slugs in his chest. And as he was running back towards the van, Fresh, you know, had his gun out and he sprayed the building, you know, fired shots at the building because there was people standing out there.” (App. 460) Stakes fled the scene in a taxicab and did not report the incident to the police. (App. 461, 463) Shortly thereafter, Stakes went to Harrisburg with Bradley and Murray.
A New York City Housing Police report shows that a man named Jorge Tesis was shot and killed on Sunday, July 21, 1991, at the location indicated by Stakes. (App. 328) *316 Two other individuals were also shot but were not seriously injured. (App. 328) The report describes the alleged perpetrator as a 5'8" tall 20-year old; Murray was 18 or 19 years old at the time and is 6' tall. (App. 328, 822) According to the report, a “witness states male walked up to [the victim] and opened fire with a gun striking victim in the stomach and chest.” (App. 329)
Murray was convicted on all counts. (App. 57) A sentence of life imprisonment was imposed, and Murray appealed.
II.
Murray challenges the admission of Stakes’ testimony under both Fed.R.Evid. 404(b) and Fed.R.Evid. 403. We address his Rule 404(b) argument first.
A. As a general rule, “all relevant evidence is admissible,” Fed.R.Evid. 402, and evidence is “relevant” if its existence simply has some “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or. less probable than it would be without the evidence.” Fed.R.Evid. 401. However, Rule 404(b) restricts the admission of one category of relevant evidence. Rule 404(b) provides in part as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Thus, in order for “[e]vidence of other crimes, wrongs, or acts” to be admissible, it must be relevant to prove something other than “the character of the person in order to show that he acted in conformity therewith.” In this case, therefore, Rule 404(b) barred Stakes’ testimony if it was relevant only to permit the jury to infer that Murray had a homicidal character and that this character found expression in the murder of Bacallo. But if Stakes’ testimony was relevant to prove anything else, Rule 404(b) did not preclude its admission. On appeal, Rule 404(b) rulings “may be reversed only when they are clearly contrary to reason and not justified by the evidence.”
United States v. Balter,
The admission of evidence that is allowed by Rule 404(b) is not disfavored, but trial judges need to exercise particular care in admitting such evidence. This is so for at least two reasons. First, the line between what is permitted and what is prohibited under Rule 404(b) is sometimes quite subtle. Second, Rule 404(b) evidence sometimes carries a substantial danger of unfair prejudice and thus raises serious questions under Fed.R.Evid. 403. Therefore, it is advisable for a trial judge to insist that a party offering Rule 404(b) evidence place on the record a clear explanation of the chain of inferences leading from the evidence in question to a fact “that is of consequence to the determination of the action.” Fed.R. Evid 401. And it is likewise advisable for the trial court to place on the record a clear explanation of the basis for its ruling on the admission of the evidence. Not only do these procedures help to ensure that sensitive Rule 404(b) rulings are made with care (and thus to diminish the likelihood that these rulings will result in reversals), but these procedures greatly assist the process of appellate review. Consequently, although the language of Rule 404(b) does not require such procedures, our cases have emphasized their usefulness.
See Himelwright,
Unfortunately, these procedures were not followed here. The government never provided a clear explanation on the record of the chain of inferences on which it was relying. 2 *317 Its best explanation appears to have oceurred at the charge conference, when the prosecutor stated that Stukes’ testimony “wasn’t just [offered for] identity. Role in the organization, common scheme, plan, a number of different reasons.” (App. 957) The prosecution provided no further explanation beyond these conclusory statements, and the district court similarly gave little explanation for its ruling admitting this highly sensitive evidence. The district court’s most complete on-the-record explanation appears to have occurred during the charge to the jury when it said only that the evidence was admitted “for the very limited purpose to show identity, role in the conspiracy, a common scheme or plan,” and cautioned that it was not admissible to prove character. (App. 995-96) We have searched the record but have been unable to find anything other than these conclusory assertions to support the admission of Stukes’ testimony regarding the uncharged New York murder.
We have examined each of the grounds offered by the prosecution and accepted by the trial judge for the admission of this testimony, and even under the highly deferential standard of review that we generally apply to a trial judge’s Rule 404(b) rulings, we believe that the admission of this evidence was improper. The government’s principal Rule 404(b) argument seems to be that Stukes’ testimony was relevant to show Murray’s role in the conspiracy. While the government’s brief does little to flesh out this argument, we perceive the argument to run as follows: Murray murdered the victim in New York City at the behest of the CCE charged in the indictment; from this fact, the jury could infer that Murray was the CCE’s designated “shooter”; and from this fact, the jury could infer that the shooting of Bacallo, which was committed in the interests of the Bradley CCE, was performed by Murray.
This theory, however, is undermined by the absence of any evidence that the New York murder about which Stukes testified was in any way related to the charged CCE. On the contrary, it appears from Stukes’ testimony that the murder arose out of a dispute between the cousin of a friend of Bradley’s (“Howie”) and the New York victim over drug sales in New York City. The government has not directed our attention to any evidence that Howie, his cousin, or the New York victim were involved in the CCE described in the indictment or that the dispute with the New York victim had anything to do with the activities of that CCE, whose drug sales took place in Harrisburg. (App. 65-66) Thus, evidence that Murray was a triggerman in the New York murder does not tend to show that he performed the same role in the Harrisburg CCE, and consequently this evidence does not seem to be admissible under Rule 404(b) to show his role in the charged CCE. 3
The absence of evidence that the New York murder was related to the CCE charged in the indictment also dooms the government’s argument that evidence of the New York murder was admissible because it and Bacallo’s murder were committed on the basis of a common plan or scheme. As we explained in
Government of the Virgin Islands v. Pinney,
We also see no merit in the government’s argument in the district court that proof of the New York murder was admissible to prove “identity” because that murder was “a signature killing” and because Baeallo’s murder bore the same signature. (App. 820) “The evidence concerning the manner in which the two alleged crimes were committed here was neither sufficiently detailed nor significantly unusual to permit any inference that the perpetrator of the second [crime] was the same perpetrator of the first.”
Pinney,
In sum, we do not believe that any of the grounds advanced by the prosecution and accepted by the district court at trial can justify the admission of the evidence of the New York murder under Rule 404(b).
B. Moreover, even if this evidence had some relevance to show something other than that Murray has a homicidal character, this relevance was so slight and the potential for unfair prejudice was so great that Fed. R.Evid. 403 demanded the exclusion of the evidence.
Rule 403 provides in pertinent part that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ...” We review a Rule 403 ruling for abuse of discretion unless the district court failed to explain its ruling and “its reasons for doing so are not otherwise apparent from the record.”
Himelwright,
In this case, the district court’s on-record explanation for its ruling was minimal. It appears that the district court conducted virtually all of its Rule 403 discussion off the record in chambers and that the sum total of its on-record treatment of the issue is the
*319
conclusory statement that “[t]he Court recognizes that it is prejudicial, but it is also highly probative.” (App. 377) When the record does not contain an adequate explanation of a trial judge’s Rule 403 ruling, a remand for clarification may be appropriate, but here we see no reason for a remand, because we see no basis on which the admission of the evidence in question could be sustained.
Cf. United States v. Sriyuth,
It should go without saying that evidence in a murder trial that the defendant committed another prior murder poses a high risk of unfair prejudice. Stukes’ testimony concerning the uncharged New York murder informed the jury that Murray had shot at point-blank range a man with whom he had no personal conflict and whom he appears not to have even known. Evidence would have to possess significant probative value to avoid being substantially outweighed by the grave danger of unfair prejudice that this testimony carried.
In the previous section of this opinion, we reviewed all of the government’s arguments as to how the evidence of the New York murder was relevant to prove something other than Murray’s homicidal character, and we concluded that this evidence was not even relevant to show any of the permissible things mentioned by the government or the district court at trial. But even if the evidence of the- New York murder had some relevance under one or more of these theories, its legitimate probative value was unquestionably slight. We will now again discuss all of the government’s theories, but we will add a few comments about the government’s best theory, i.e., that the proof of the New York murder was relevant to show Murray’s role in the CCE.
As we previously noted, the government’s theory apparently is that the evidence of the New York murder was relevant to show that Murray played the role of the CCE’s killer, that the Bacallo murder was committed to serve the CCE’s interests, and that therefore it could be inferred that Murray committed that murder. Even if there were some slight evidence that the New York murder was connected with the CCE charged in the indictment, the probative value of the testimony regarding the New York murder to show that Murray committed the Bacallo murder would still be small. Under the government’s theory, the probative value of the evidence of the New York murder depends on the uniqueness of Murray’s role as the CCE’s “shooter.” The events surrounding the New York murder, however, as recounted by Stukes, do not show that Murray played the unique and distinctive role of the CCE’s killer. On the contrary, Stukes testified that Bradley “has a rep in New York as being a shooter,” explained that Bradley brought him along to see how Bradley established thát reputation, and testified that Bradley “sprayed the budding” with gunfire. (App. 458, 460) Accordingly, the testimony regarding the New York murder suggested at most that Murray was a shooter, not the shooter. Unless there were significant evidence linking the New York murder to the CCE, Stukes’ account of the New York murder would appear to have little legitimate probative value. 6 Accordingly, we hold that the district court abused its discretion in concluding that any legitimate probative value possessed by this evidence was not substantially outweighed by the danger of unfair prejudice.
We are unable to conclude that the district court’s Rule 404(b) and Rule 403 errors were harmless in relation to the murder charge. In order to do so, we would have to be persuaded that it is “highly probable that the evidence ... did not contribute to the jury’s judgment of conviction.”
Government of Virgin Islands v. Archibald,
987
*320
F.2d 180, 187 (3d Cir.1993) (quoting
United States v. Schwartz,
[Stukes] was present in July of 1991 when this defendant gunned down an individual in New York, participated in a murder with Jonathan Ray Bradley of a drug dealer over drugs. Doesn’t that help establish that this defendant was part of this conspiracy whose role as Stukes said was the shooter, whose favorite weapon was a .45? This is not the trial of that incident in New York. This is not that trial. That evidence is offered to establish the reliability of all of the other information establishing this defendant as the killer of Juan Carlos Bacallao [sic] in this case. And if you credit that testimony of Stukes, doesn’t that help establish that this defendant is in fact a killer, the shooter, the executioner of Juan Carlos Bacallao [sic]?
App. 915-16 (emphasis added).
We cannot disregard the possibility that the evidence of the New York murder “weigh[ed] too much with the jury and ... so overpersuade[d] them as to prejudice one with a bad general record and deny him a fair opportunity to defend against a particular charge.”
United States v. Sampson,
III.
Murray argues that the admission of the testimony of Lt. John Goshert of the Harrisburg police department contravened Fed.R.Evid. 608. Murray timely and clearly objected to Lt. Goshert’s testimony. (App. 826-28) In relevant part, Rule 608 provides:
(a) The credibility of a witness may be ... supported by evidence in the form of opinion or reputation, but subject to these limitations ... (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility ... may not be proved by extrinsic evidence.
Murray’s first argument is that Brown’s character for truthfulness was not “attacked by opinion or reputation evidence
*321
or otherwise.” We disagree. It is true that Murray did not present any opinion or reputation evidence to impeach Brown, but Murray’s counsel- performed an extended and vigorous cross-examination of Brown that exposed Brown’s various illegal and sordid activities. Murray’s counsel questioned Brown about his long-standing and heavy drug use, his acquaintance with many Harrisburg drug dealers, his apparent under-the-table tax-free compensation for his work as an informant, his convictions for drug possession and theft of services, his unlawful carrying of an unlicensed firearm, his concealment of his drug use from his friend and contact in the Harrisburg police department, and his prior inconsistent statements to the grand jury. (App. 730-61) In view of this questioning, the opinion or reputation testimony given by Lt. Goshert fell within the language of Rule 608(a)(2) permitting the introduction of such evidence to support a witness’ credibility when his character for truthfulness has been “otherwise” attacked.
See, e.g., United States v. Dring,
Murray’s more persuasive argument is founded upon Rule 608(b)’s prohibition on proving specific instances of a witness’ conduct by extrinsic evidence. Once Brown’s character for truthfulness was attacked by Murray’s counsel, the government was entitled to attempt to rehabilitate Brown by calling a witness to give opinion or reputation testimony as to Brown’s character for truthfulness. But the government was not entitled to present “extrinsic evidence” of “specific instances” of Brown’s conduct “for the purpose of ... supporting [his] credibility.” Fed.R.Evid. 608(b). Lt. Goshert’s testimony was as follows:
Q. Lieutenant Goshert, do you know an individual by the name of Richard Brown?
A. Yes, I do.
Q. Have you ever used Mr. Brown as a confidential informant?
A. On numerous occasions, the Harrisburg Police has utilized him.
Q. As a result pf [sic] your using Richard Brown as a confidential informant, have you made any cases?
A. Yes, we have.
Q. Do you have an idea of approximately how many?
A. In excess of 65. 65, 66 something like that.
Q. And search warrants, have you obtained search warrants based on his information?
A. Yes, we have numerous times.
Q. How- long a period of time have you been dealing with Mr. Brown?
A. Since 1988.
Q. Based on your dealings with Mr. Brown and the cases you said that he has made, can you give us your opinion as to his reputation for being a reliable individual?
A. He is extremely reliable.
Q. In terms of the accuracy of the information?
A. Yes.
App. 835-36.
This testimony, in our view, included “extrinsic evidence” of Brown’s character for truthfulness.
United States v. McNeill,
United States v. Taylor,
We are buttressed in this conclusion by the emphasis placed by the government on Lt. Goshert’s testimony in its closing argument. The government first told the jury that “[i]t was very important, wasn’t it, to hear from him?” and then argued:
And Lieutenant Goshert, you think he would let any of his men or himself kick down some door with a search warrant on a drug raid or make an arrest on information from somebody that they didn’t think was reliable? Sixty-seven cases, Richard Brown has proven to be a reliable source of information for. They stake their lives on his testimony — on his information. Does that give you some sense of how reliable he is?
App. 913-14. This emphasis compounded the significance of the error in allowing Lt. Goshert’s specific-instance testimony and prevents us from concluding that the error was harmless. 8 On retrial, the district court should limit the government to eliciting from Lt. Goshert only such testimony as is necessary to establish a foundation for his opinion. 9
IV.
Murray also argues that the district court erred in denying his motion to disqualify for cause a juror who had read a newspaper article about the case. Immediately before trial commenced on August 10,1995, the court asked whether any jurors had seen an article that appeared in the Harrisburg Patriot-News on August 2,1995, entitled “Feds won’t seek death penalty for accused killer, 22.” (App. 85) The article stated, inter alia, that Murray had previously pled guilty to the murder and had described it as “not a premeditation or contract killing. It was just a stupid unfortunate incident.” (App. 85)
A juror named Mary Kling acknowledged that she had read the article and was sub *323 jected to voir dire by the court and by Murray’s .counsel. (App. 413-15) Kling stated that all she could remember from the article was that the government had decided not to seek the death penalty and had not given any explanation for that decision, that Murray was accused of murder, and that he was from New York. (App. 414) She denied that she had formed any opinion as to Murray’s guilt or innocence and affirmed that she could decide the case on the basis of the evidence. (App. 413-14) The court was satisfied that Kling could serve impartially and denied Murray’s motion to excuse her for cause. (App. 419)
“In determining whether a particular juror should be excused for cause, our main concern is whether the juror holds a particular belief or opinion that will prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”
Kirk v. Raymark Indus., Inc.,
Under this deferential standard of review, we are unable to conclude that the court erred in allowing Kling to serve as a juror.
V.
Murray’s final argument is that the district court erred in allowing Sean Proffit to testify as to what Murray told him in jail. Murray argues that the admission of Proffit’s testimony deprived him of his Sixth Amendment right to counsel under
Massiah v. United States,
VI.
For the foregoing reasons, we reverse the judgment of conviction and sentence on the murder charge and remand for a new trial. We affirm the judgment of conviction as to the drug charges and remand for resentencing, if appropriate, on those counts.
Notes
. Prior to trial, Murray had moved to exclude Proffit’s testimony on the ground that Proffit's conversation with him violated
Massiah v. United States,
. The. government contends that Murray never objected under Rule 404(b) or Rule 403 to the introduction of Stakes' testimony. However, it appears to us that Murray did raise both of these issues. The court opened the August 10, 1995 hearing by making its Rule 403 ruling (App. 377), which indicates that Murray had argued this point in chambers. In addition, Murray repeated the objection on the record, if somewhat obliquely.
See
App. 382 ("Your Honor, I would also point out that as the Court has noted, it is highly prejudicial.”) Shortly thereafter, the government referred to the court's off-the-record discussion of the Rule 403 issue. (App. 385) At an August 14 hearing, Murray's counsel noted that "[m]ost of my argument on the 404(b) mate
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rial, the New York murders, was said in chambers off the record." (App. 818) Later, when the court asked Murray’s counsel to draft a limiting instruction for Stukes' testimony, he replied that "I am not quite sure what the relevance was, and it was my contention that it was not relevant.” (App. 820) While it is true that much of Murray’s ire with respect to Stukes’ testimony was directed at the fact that he did not receive notice that it would be used in the government’s case-in-chief until the day before trial (because of the government's last-minute change in strategy precipitated by the withdrawal of the death penalty authorization), we are satisfied that Murray made it sufficiently clear that he was objecting to its relevance under Rule 404(b) and to its unfair prejudicial effect under Rule 403. Fed.R.Evid. 103(a).
Cf. United States v. Long,
. The government might conceivably - have argued, not that the New York murder showed that Murray played the role of the CCE’s designated killer, but that he played the role of Bradley’s personal killer. But even if the government had made this argument, the legitimate probative value of this evidence would have been substantially outweighed by the danger of unfair prejudice for essentially the reasons set out in part IIB of this opinion.
. The same is true with respect to the government's suggestion on appeal that evidence of the New York murder was admissible to establish the existence of the charged CCE and Murray’s membership in it. See Govt. Br. at 29. Since there was no evidence that the New York murder was committed as part of the charged CCE, Murray’s commission of that murder does not tend to show either the existence of that enterprise or Murray's membership.
Another related argument advanced by the government on appeal is the contention that the New York murder showed Murray's motive for the Bacallo murder, “that is to advance the interests of the Continuing Criminal Enterprise.” Govt. Br. at 35. Apparently, the government's theory is that the New York murder was relevant to show Murray’s membership in the CCE and thus to show that he had a motive for the Bacallo killing, which furthered the CCE's interests. But the lack of evidence linking the New York murder to the CCE is fatal to this theory.
. On appeal, the government advances the apparently new argument that evidence of the New York murder was admissible to refute in advance a claim that Murray had made in a letter to the district court after the sentencing hearing that followed his abortive guilty plea. At that time, Murray claimed that Bacallo had lunged at him prior to the shooting, and the government maintains that evidence of the New York murder was relevant to show that the Bacallo killing was not accidental and was not committed in self-defense. Govt. Br. at 29-30. The government further argues that it "did not have to wait for rebuttal to offer this evidence.” Id. at 30. Murray, however, did not testify, and the government does not claim that the defense ever suggested to the jury that the Bacallo murder was accidental or that it occurred in self-defense. Moreover, the government itself notes that the theory that the killing was accidental or in self-defense “was in stark contrast to the ... nature of Bacallo's wounds.” Id. at 9. Thus, without any suggestion by the defense that the killing was accidental or occurred in self-defense, it is questionable whether the New York killing was relevant, and in any event its probative value to show absence of accident or self-defense was undoubtedly negligible.
. On redirect examination, Stukes was asked, “What was Mr. Murray’s role or function or reputation in your crew?” and Stukes responded that he was "[j]ust a shooter." (App. 522-23) The parties have not addressed the question whether this testimony, as opposed to Stukes’ testimony concerning the New York murder, was properly admitted, and we therefore do not reach that question here.
. The government prepared a chart detailing the particular instances where Brown had provided information to the Harrisburg police, but it conceded that the chart was not admissible under Rule 608(b). (App. 827)
. In
United States v. Piva,
.Murray does not argue that the erroneous admission of Lt. Goshert's testimony somehow taints his convictions on the drug charges. The prejudicial effect of Lt. Goshert's testimony was to bolster the credibility of Richard Brown, who testified about the murder of which Murray was convicted. However, Brown did not testify in support of the drug charges. We therefore conclude that the district court’s Rule 608(b) error does not require reversal of Murray's drug convictions.