*1
wеre a
factor in bringing
substantial
about will affirm the district
ruling
court’s
on the
the Northwest
loan loss that eventually
issue,
causation
as we see no basis for
Allowing
resulted.
to decide the
concluding,
law,
as a matter of
proximate
of
issue
cause is consistent with
dishonest and fraudulent actions did not
Jersey’s
New
approach
resolving causa-
cause the Northwest loss.
Perez,
tion issues. See
976-77; Citibank, 1495; 968 F.2d at W. al.,
Page Keeton et Prosser and Keeton on (5th §
the Law Torts ed.1984)). flaw, Given analytical F &
D has persuaded us that the facts
pertaining to the proximate issue of causa
tion are so one-sided so require as to
judgment as a matter law its favor. Bank, (find 965 F.2d at 1285 Jefferson ing genuine issue of material fact concern
ing whether forged signature proximately
caused loss where the evidence suggested that the bank would have refused enter UNITED STATES America the transaction had not an pur individual porting to be a notary signed the instru
ment);
Lustig,
accord
“does not No. 97-1413 the bank to rule all out Cross-Appellee reasons the loan repaid was not before it 97-1467 No. Not can coverage”). party obtain Proceeding. Accordingly, to the En Banc *2 America States
United Lukesh, Appellant J.
Richard
in No. 97-1414. to 97-1414.
Nos. 97-1412 Appeals,
Third Circuit. May
Argued 8, 1999 Nov. En Banc
Argued 14, 2000. March
Decided
Thomas C. Carroll (Argued) Carroll & Cedrone, PA, Philadelphia, for Appellants. Attorney Appellants Universal Reha- (PA), bilitation Services Inc. and Richard J. Lukesh Michael R. Stiles States United Attor- ney Batty, Walter S. Assistant Jr. United Attorney States Appeals Chief of Valli F. Baldassano, Ercole, Suzanne B. Robert A. (Argued) Zauzmer Attorney Asst. U.S. Of- fice of Atty. Philadelphia, the U.S. PA for Appellee. ROTH,
BEFORE: McKEE and GARTH, Judges Circuit BECKER, BEFORE: Judge, Chief SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, GARTH, BARRY and Judges. Circuit OPINION OF THE COURT GARTH, Judge: Circuit granted We have en banc review to re- solve a conflict in jurisprudence our court’s regulations law and the federal Both publication following the surfaced that has Secretary of Health & by the promulgated Cohen, v. States of United the Medicare authorize Human Services Gaev, 24 Cir.1999), v. (3d States United claims that are only those pay program Cir.1994), States medically reasonable to be deemed (3d Cir.1991), Gambino, F.2d 1355 determining whether necessary. hand, and United one on the refer- specific been met with criteria have (3d Cir.1993), on Thomas, F.2d 1202 services, the Medi- therapy speech ence to matter, the Dis- instant In the the other.1 sepa- four program generally looks care pur- permitted government, trict Court be safe therapy must rate criteria: (“Fed- Rule of Evidence suant patient’s con- treating the and effective Rule”) both to introduce eral *4 (2) must dition; provided services the pleas of two wit- agreements and as a certi- complex insofar sufficiently representation a notwithstanding nesses provide such pathologist can speech fied they would counsel by defense (3) services; were if restorative treatment witnesses. credibility of such challenge the ordered, expect that pathologist must the three defendants all The convicted improve patient’s the would the services panel mail fraud. a count sole a reasonable significantly condition gov- the granted We majority reversed. time; frequency and and the amount of rehearing and vacat- petition ernment’s a must bear rea- of the services duration panel decision.2 ed pa- to the necessary relation sonable and en- will now affirm convictions We matter, criminal In this tient’s condition. Reha- Universal defendants against tered contends that both Üni- government (PA), Inc., and Richard Services bilitation intentionally representatives and versal its Lukesh. to IBC in the claims submitted altered criteria. order to meet these I orders, a Uni- physician’s to a Pursuant patient’s a therapist would evaluate versal (PA), Services Universal Rehabilitation initially in order to determine needs (“Universal”) in the busi- engaged Inc. necessary, and if was whether treatment rehabilitative providing various ness of so, program a of treatment. Once propose to el- services, speech therapy, especially evaluation, this physician approved a living nursing patients derly Medicare vitally important a doc- evaluation became into con- would enter homes. Universal insofar as it purposes ument for Medicare homes, nursing local tracts with several treatment provided an assessment that speech ther- send its would thereafter necessary patient. for the medically was site. Rather patients on apists to treat Indeed, specifically reviewers Medicare Medicare, directly bills than submit its rendering re- considered the evaluation Blue Independence employed Universal decisions. imbursement (“IBC”) intermediary pro- as an Cross particular patient aof Once treatment Univer- arrangement, cessor. Under commences, requires phy- IBC, Medicare claims to its sal would submit thirty days that contin- each certify sician such claims process organize would medically necessary. was ued treatment sending them to Medicare. before Gullo, 1980); States v. Cir. United addressing admission of a 1. Other cases Toner, Cir.1974); (3d States v. 173 United 759 testifying co-conspirator’s and/or Cir.1949). (3d F.2d 140 following: Gov- agreement include the Mujahid, Virgin v. 990 Islands ernment Cir.1993); petition (3d for rehear- States v. did 2. United F.2d Cir.1991); original panel's dispo- (3d respect Werme, ing Cir.1986); Inadi, (3d appeal. n. Horvath’s sition Attila infra General, Attorney F.2d 307 Bisaccia Further, only pay forms, Medicare will for such information progress certifica- long patient continued treatment so as the tions so as to reflect either the need for progressing goals towards the refer- medical treatment or certify evaluation, such, enced in the initial patient as progressing because of treat- therapists would write already provided. Universal notes ment concerning patient’s progress. Uni- As for this latter rewriting, form of thirty-day versal would meet the recertifi- government contends that initial evalua- requirement by having physician cation tions were altered provide so as to (“MIF ”) sign a Medical Information Form “appearance” that speech therapy was summary that contained a previous medically necessary for patient, medi- thirty days of pre- treatment cal information forms were appear made to scribed course of treatment for the thirty if physician actually had reviewed the days to come. patient’s progress and recommended that
Universal would submit its Medicare the speech therapy continue, and finally, claims to electronically IBC for IBC’s re- the therapists’ personal progress notes Universal, According view. IBC’s re- concerning patient were modified to that., quirements for the proper processing provide of its appearance patient elaborate, detailed, claims were and ex- was improving. In order to obtain the *5 tremely difficult comply. with which to required physician’s signature, Universal reason, For this Universal and IBC often representatives and its would photocopy proper interpretation as to the physician’s differed of signature on the initial and, indeed, regulations, the Medicare form paste and photocopy this on the al- ultimate decision as to whether Medicare tered Only form. after the oc- rewriting particular would reimburse claim. Pur- curred would the claims be submitted to suant to a random auditing system, IBC IBC for All efforts, review. of these of ultimately requested course, provide Universal were intended to Increase the like- in support documentation of certain claims lihood that Medicare would reimburse Uni- that Universal had submitted. Irregulari- versal speech therapy for the services Uni- ties in this in- documentation led IBC to versal claimed to have rendered.3 further, vestigate investigation an that un- 31, 1995, On March grand a federal very covered the “rewriting” scheme that Universal, appellants indicted Universal’s issue this criminal matter. Finance, Vice-President and Director of The government alleges that (“Horvath”), between Attila Horvath Universal’s 21, the summer of September 1988 and Operations, Director of Richard Lukesh (“Lukesh”), Universal and representatives its al- and other three defendants4 on tered and rewrote fraud, certain Medicare claims seventeen counts mail in violation in order to ensure pro- § that the Medicare twenty-one 18 U.S.C. and counts gram claims, would such reimburse claims. Uni- of false in violation of 18 U.S.C. occurred, versal admits that trial, § this but 287. Prior to Bonjo Julia Blum claims that rewriting (“Bonjo”) (“Martin”) such had two forms: and Penny Martin (1) honestly inserting information pled guilty omitted to a sole count of mail fraud in comply so as to with regulations; Medicare connection with the scheme described evaluations, altering Universal, and initial Horvath, Lukesh, medical above.5 and Fraud, Shows, pervasive suing 3.Fraud has been Today, in connection Audit USA Dec. with at Al. Georgia Medicare reimbursement. See Court, Fraud, Keeping Eye on Medicare Meitus, 4. The other defendants were Vicki Post, 16, 1999, (“The Cincinnati Dec. at 4C Mary Mongoven Conroy, and Julia Blum Bon- Inspector Office of the General Health and jo- Human $12.6 Services estimated billion $176.1 payments [of billion in were] Medicare above, Bonjo 5. As stated had been indicted improper."); Medicare Aren’t Pur- Contractors Universal, Horvath, with ap- and Lukesh—the you may you although limine I caution trial, motions in filed prior to also evidence, Court, is the evi- attempting pre- this consider the District to Federal pursuant plea entered government, vent the that she has dence introducing such from credibility Rule and assessing into evidence. plea agreements witness, you should testimony of this Universal, Horvath, time, At the same you it de- weight as feel give such they would represented that Lukesh each serves. challenge the affirmatively the evidence that may You not consider during cross- Bonjo or of either Martin against plea has entered a she held ex- District Court examination.6 case, this nor defendant, any in any issue, and argument on this tensive oral against be drawn any inference trial had after the ruling its until reserved trial reason defendant pre- government and the commenced guilty. Bonjo Citing a witness. pared to call as added). The (emphasis at 1966-67 App. Gaev, 24 opinion our similarly provided a District Court detailed (3d Cir.1994), the District Court government after the elicited instruction per- limine then denied the motions plea agree- testimony concerning Martin’s to introduce both mitted Finally, during its App. at 2863-64. ment. pleas and and Martin’s trial, jury after the the Dis- charge to the part principal of its case. agreements as follows: trict Court instructed stated the District Court particular, Penny Martin en- Blum Julia plea agreements into with the tered testify the [Bonjo Martin] if plea agreements are Government. Such whether or certainly wonder going proper expressly approved as lawful and going It’s charged. have been *6 Supreme the United Court by they what have been perhaps to wonder appropriate, proper. are Each and are prosecutor anything if promised by the is a plead guilty decision to witness’ they may getting return and what be guilt. personal decision about her own testimony. may You this evidence consider all of those factors weighing I think in on trial nor against the defendant I -am possible prejudice that with the you any or inferences draw conclusions bring to allow the Government going guilt of the defen- any kind about plea and the guilty the fact of out prose- the fact that a dants on trial from guilty plea agreement. fact of the guilty to pled сution witness similar App. at 1768. charges. introduced government had After witnesses, Ias testimony The of such Bonjo’s and concomi- plea the evidence indicated, scrutinized be with should Court plea the District agreement, tant you weight it the that give caution and immediately as follows: instructed given think it under all of the should be just heard jury, you’ve of the Members circumstances. plead has ... that this witness evidence during the trial you I indicated to And mail fraud and charge to a guilty [sic] pleas of the fact entered of some of the involved matters which' by you in guilty could not considered testified to here things she has guilt or innocence of determining the trial. however, Martin, he will that at the of this action appeal. serts trial pellants in this by agreements guilty pleas/plea pled guilty separate to a information filed raise the on government. seek to raise infer- cross-examination nor accomplices pleas of [sic] on which the ence App. at to rebut.” would be admissible in Limine Specifically, Motion 6. Lukesh’s stated, pertinent part, that as- "Defendant people trial any of the here. The judgments motions for of acquittal on suf f only plea reason agree- and the iciency of plea grounds. particu brought you ment were out was lar, so that the defendants argued that the fact would know all of the circumstances sur- had convicted them of the rounding entry plea, you’d of the same count to which and Martin plea know the under which terms pled had had acquitted then —and you judge was entered and could them of remaining thirty-eight counts yourselves whether the witness in the proved that the admis indictment — testifying trial is truthfully or whether sion of plea Martin’s agree the witness has a motive to embellish ments and preju a clear had testimony vary from the truth. dicial effect. That is the only basis or the reason government cross-appealed, arguing why agreement that the District Court erred sentencing were admitted. Horvath and Lukesh by failing to consider App. at 4829-30. stemming the loss from the alleged fraud deliberation, After the jury found Uni- in the other thirty-eight in- counts of the versal, Horvath, and Lukesh on dictment on which jury aсquitted Uni- indictment, count one of specifi- versal, Horvath, and Lukesh —“relevant cally alleged engaged that Universal had pursuant conduct” to sections 1B1.3 and in mail fraud when IBC mailed a check to 2F1.1 of the United States Sentencing representing Universal a claim for treat- in failing provide Guidelines—and re- provided patients, ment to one of its Mil- quired findings of fact regard 15, 1989, Hynes, February dred between the District imposed. sentences February jury, 1989. The howev- answered, government also the defen- er, Universal, Horvath, also found argument dants’ concerning Lukesh not on the remaining thirty- issue arguing party that a cannot attack eight counts of the indictment. All three a District evidentiary Court’s ruling made defendants then judgment moved for a prior during to or a trial referencing a acquittal pursuant to Federal Rule of jury’s ultimate verdict. The Criminal arguing Procedure claimed that hindsight such could not be government had introduced insufficient ev- used to measure the District Court’s exer- *7 support idence to the jury’s verdict. On cise of discretion. 31, 1996, May the District Court denied 11, In an opinion February 1999, filed on this motion and proceeded sentencing.7 panel, the judge dissenting, one reversed. 19, May 1997, On the District Court sen- specifically, panel More the held that there $25,000, tenced Universal ato fine of Hor- was insufficient evidence to convict Hor- period vath to a years probation, of three fraud, vath of govern- mail but the $10,000, restitution, fine of in and $705.20 ment had introduced sufficient evidence and Lukesh to years probation, three of support the $15,000, convictions of both Universal fine of in and restitution. $705.20 such, panel and Lukesh. As majority the Universal, Horvath, and ap- Lukesh remanded to the District to enter a Court pealed judgment the of and conviction judgment of acquittal for Horvath. Court, sentence arguing to this the District panel majority Court abused its in discretion ad- also held that the mitting the and District had in abused its discretion Martin, and in denying post-trial allowing government the to introduce evi- 31, erred, May 7. The opinion District Court’s reiterating 1996 cluded that it had not its presently also the revisited issue the en before prosecution over selective and that concern court; namely, banc whether was abuse an testimony assist witnesses’ would of discretion to allow the introduction of Bon- assessing credibility. jo guilty pleas. and Martin’s con- court 664 doctrine to the final order pleas, pursuant error Bonjo and Martin’s
deuce § 1291. of 28 U.S.C. result, the District Court ordered as a and charges' concerning trial to hold a new Ill Be- Lukesh. and against Universal levied majority this, did panel cause A presented issues sentencing reach held that the admis- previously haveWe cross-appeal. government’s of a sion and/or granted full court April On Federal Rule governed by agreement9 en rehearing petition government’s see, v. e.g., opinion and banc, panel’s vacated (3d Cir.1994), such, and and as F.3d v. States Universal See United judgment.8 appropriate provides the rule itself (PA), Inc., Servs. Rehabilitation analysis. our starting point (3d Cir.1999). focused re order Our provides: Rule 403 denial of Court’s hearing on the District relevant, ex- evidence Although limine, defendants’ motions value is probative cluded if its substan- from prevent government sought to of unfair tially outweighed by danger Martin’s introducing issues, or prejudice, confusion id.; States v. see also United pleas. See jury, byor considerations misleading the (PA), Servs. Rehabilitation time, Universal delay, waste of need- of undue (3d Cir.1999) (di Inc., presentation of cumulative evidence. less mem- supplemental parties to “file recting rule As the text of the Fed. R. Evid. 403. factors set[ting] forth what ... oranda indicates, that is otherwise rele- evidence the District Court by be considered should may only be vant and excluded admissible admissibility testifying of a ruling if the value We now af co-conspirator’s guilty plea”). prejudicial its substantially outweighed Luk- convictions of Universal firm the reason, a number of effect. For Court. entered the District esh held that Federal Rule 403 courts have admissibility, presumption of creates a II the rule may utilize that district courts exclusion evi- subject only rarely to cause Court exercised The District Morris, See, e.g., dence. United States jurisdiction pursuant to 18 U.S.C. matter (5th Cir.1996); 409, 412 Hendrix jurisdiction possess § appellate We Inc., 776 F.2d Raybestos-Manhattan, arguments and Lukesh’s over Universal attempt and Lukesh panel tinction that Universal vacated the 8. Our en banc order opinion judgment as it concerned a difference as it relates insofar draw is one without such, panel’s analysis. Lukesh. As one Universal to the Federal Once Rule present holding that the failed accepts premise that a witness’s *8 jury's convic- justify value, sufficient evidence infra, espe probative text plea has see Horvath, the District Court and that tion credibility, cially respect to the witness’s judgment failing to order a erred in therefore agree plea the terms of introduction of remains unaf- acquittal on Horvath’s behalf necessary complement dis ment becomes a holding today revives Because our fected. jury been the witness has not close to government’s cross- need to address the promised exchange deal” in for a "sweetheart the District Court appeal as to the sentence Pierce, testimony. United States v. 959 See Lukesh, imposed against we discuss that issue 1297, Cir.1992). Further, (5th 1304 F.2d text in infra. identify and have failed to Universal Lukesh any prejudicial that could flow from effect that the terms 9. and Universal Lukesh claim terms of the witnesses’ introduction of the “plea” "plea agreement” not be and should agreements pleas plea once themselves interchangeably and that the District utilized such, pur accepted evidence. As for are into plea Bonjo Martin's admission of and Court's ad analysis, the District Court’s poses of our especially grave agreements was an abuse plea Martin's and mission Although agree the terms we discretion. equally. agreements are treated synonymous, we believe that the dis are
665
(11th Cir.1985).
1492,
leading
Indeed,
1502
As one
113 F.3d at
judicial
“[i]f
self-
states,
desirable,
“[i]f
treatise
there is doubt about
restraint
is ever
it is
a
when
prejudice
the existence of unfair
...
it is
Rule 403 analysis
[Federal]
of a trial court
generally
practice
better
to admit the evi-
is
appellate
reviewed
an
tribunal.”
dence,
taking necessary precautions by Long,
mind,
§
B
at 87
403
ed.
presumption
favors a
admissibility.”).
Any analysis pursuant to Federal
Rule
begin
403 must
with a
We have also held that
determination
because the
as to whether the
judge
present
trial
is
in the
evidence has
courtroom as
value.
It
offered,
is
challenged evidence is
well-settled
evidence of a
testifying
“in
position
therefore
witness’s guilty
best
assess
agreement
the extent of the
par
proba
caused a
introduced
tive,
ty,” the trial judge
given very
permissible,
must “be
and therefore
purposes.
‘balancing’ proba
substantial
As this Court
discretion
has identified on numerous
occasions,
tive
(1)
value on the one hand and ‘unfair
such purposes include:
prejudice’ on the
United
v.
allow
other.”
States
accurately, to assess the
(3d
761,
Cir.1978) (em
Long, 574 F.2d
(2)
767
credibility
witness;
to eliminate
added);
phasis
General Electric Co. v.
any concern
may harbor
cf.
Joiner,
143,
136,
512,
522 U.S.
118
concerning
S.Ct.
whether the
has
666
was
Chief, the
In Old
defendant
the ment.
purpose for
proper
be a
ceased to
law, 18
a
violating
federal
charged with
Bonjo and Martin’s
of
admission
an indi-
prohibits
which
922(g)(1),
§
U.S.C.
through their
they promised,
once
felony
a
convicted of
previously
and vidual
limine,
to attack
in
motions
174,
at
id.
a firearm. See
possessing
from
are instruct-
credibility.
Jurors
Martin’s
government
the
Because
cases,
668 Nonetheless, consis we have also
C
is
prejudicial effect
this
tently held
that the
held
repeatedly
have
We
a curative
through
instruc
cured
typically
a wit
neither
introduce
may
See,
Mujahid, 990
e.g.,
jury.
tion to the
her concomi
nor his or
ness’s
116; Werme,
F.2d at 113.14
939
at
F.2d
evi
as substantive
plea agreement
tant
circuits,
again, concur
once
sister
Our
See, e.g.,
guilt.
defendant’s
of a
dence
See, e.g., United
understanding.
this
Gambino,
476;
F.2d
926
Gaev, 24 F.3d at
(2d
Prawl,
622
Cir.
168 F.3d
v.
States
for
the rationale
discussed
at 1363. We
200,
Tse,
1999);
v.
States
United
v.
length
United
rule at
Sanders,
(1st Cir.1998);
F.3d at
95
207
Cir.1949):
(3d
Toner,
F.2d 140
173
Pierce,
F.2d at
454;
959
see also
countervailing pol-
should be instruct
jury
in such cases
The foundation
every
defendant
consider the
right
that it
not
icy is
ed
charge
proof of the
plea agreement
fall
as evidence that
stand or
with the
and/or
him,
somebody
against
the offenses with
not
is
against
made
defendant
right
to have
rather that
charged,
had
but
The defendant
is
else.
he/she
by the
allow the
only
innocence determined
guilt or
evidence is offered
his
such
him,
by
not
presented against
credibility,
jury to assess
witness’s
regard to
happened with
that the defendant
any
what has
concern
eliminate
someone
against
prosecution,
for
prosecution
singled
criminal
has been
out
possessed detailed
explain how the witness
else.
the events
knowledge regarding
first-hand
Id,
Attorney
in Bisaccia
quoted
testifies.
which he or she
about
Cir.1980).
(3d
General,
312
above,
Court
the District
a wit-
As recounted
such,
the bald introduction
As
sepa-
at three
provided such an instruction
concerning facts or
guilty plea
ness’s
after
during the trial:
defen-
rate occasions
to that for which
events similar
testified,
testified,
and at the
after Martin
prejudicial
have the
is on trial could
dant
the trial
the District
fact that
end of
when
trier of
suggesting
effect
pp.
jury.
supra
text
charged the
guilty mere-
be found
the defendant should
instructions,
plea. 662-63.
District Court’s
of the witness’s
ly because
608(b)
inappo-
truthfully,
is
Federal Rule
ruling or this an
viewing the District Court's
result,
only
not
was this
As a
site.
banc court.
by Universal and
theory deemed irrelevant
it,
Lukesh,
raising
they have
argue
but
Lukesh
14. Universal and
they may have derived
waived
benefit
any prejudicial
rule that
should revisit our
argument. See Fed. R.
from such an
Evid,
of a wit-
inherent
the introduction
effect
Gibbs,
103(a)(1);
F.2d
739
United States
plea agreement can
ness’s
and/or
banc).
Cir.1984) (en
More-
849
limiting
through
the use of
be ameliorated
over,
608(a) applies only to
Federal Rule
alia,
instruction,
juries
arguing,
inter
pro-
opinion
reputation evidence that is
limiting
comprehend such
cannot
instruc-
character,
beyond
and it is
bative of one’s
argu-
persuaded
We are
tions.
fall into
dispute
guilty pleas do not
("When evi-
R. Evid. ments. See Fed.
categories. Finally,
either of these narrow
party or
as to one
dence which is admissible
Federal Rule
interpreted
courts have
an-
purpose
not admissible
one
but
608(b)’s
con-
"specific instances of
bar on
purpose is admit-
party or
another
other
ted,
of con-
prohibit
introduction
duct” to
court, upon request,
shall restrict
being
to either attack
duct
if it is
used
scope
proper
and instruct
evidence to its
(i.e., one's
or bolster the
character
Texas,
accordingly.”); Spencer v.
Doe,
disposition,
States v.
general
United
see
554, 562-63,
87 S.Ct.
L.Ed.2d
U.S.
Cir.1998))
(7th
for truthful-
V Ernst, See, Hop Inc. v. e.g., E.C. tences. Cir.1980). (3d Co., 324 pers to be re- remains procedural issue One original recalled It will be solved. ROTH, dissenting, Judge, Circuit vacated the District had majority panel Sloviter, Rendell McKee and Judges whom and sen- judgment of conviction Court’s Becker Judge Chief join and with whom and Lukesh. to Universal pertaining tence 12. joins except for footnote panel majority had the Accordingly, from the result respectfully dissent I govern- necessary to it address found majority by majority. reached argued that the cross-appeal that ment’s the District Court’s admission has affirmed sentencing Lukesh. erred Court District guilty Martin’s into evidence the District have held here We objection, de- the defendants’ pleas,1 over testimony of properly admitted Court agreement not spite the defendants’ plea agree- and Martin as to pleas on cross-examina- guilty mention result, the pleas, and as a guilty ments and which these to raise inference tion or panel majority directed trial that new I believe that pleas might rebut. guilty Rather, our decision is not warranted. majority deviates from doing so the of both Uni- today affirms the convictions Rules of Evi- by Federal result mandated and Lukesh. versal Moreover, majori- 403 and 608. dence panel majority did not find Because possible make it holding now ty’s would necessary government’s to consider intro- a criminal case to government ren- has never cross-appeal, this Court a ac- defendant’s duce the the District a decision as to whether dered claiming that evi- complice simply by this it im- in the erred sentence for the must be dence admitted Moreover, upon Lukesh. because posed testifying accomplice’s properly assess the noted, sitting en this as earlier Court— I conclude that credibility. Because sentencing consider the is- banc—did discretion ad- abused its District Court raised, initially sue evidence, I pleas into mitting presently open still and unde- issue is of Lukesh the convictions would reverse our decision to affirm as a result of cided case to the remand this and Universal and convictions. Universal Lukesh’s trial. Court for a new District without than decide this issue Rather I. A. we will refer the briefing argument, sentencing majority’s opin- government’s issue on how the To demonstrate I existing precedent, whether resen- panel to determine deviates from our original ion in a place to include the this case historical tencing should be ordered will first 1949, pur- Ton- activity In in United States v. acquitted conduct of context. relevant er, whether the 1B1.3 and 2F1.1 of the we first considered to sections suant conspirator See admissible Sentencing plea Guidelines. United States alleged an Watts, in the trial of criminal States v. 519 U.S. generally United Ton- (1997); 633, co-conspirator. United States L.Ed.2d See 117 136 554 S.Ct. such, I use term Opinion at As the distinc- majority, I Like the believe agreements guilty plea(s) "guilty plea(s)” tion between is, refer case, context of a distinction in the plea agreement(s). corresponding and/or supra Majority without difference.
671 (3d Cir.1949). er, Toner, Davis, F.2d 140 Cir.1999) (“A ultimately held that the trial court’s conspiracy requires agreement be- of an alleged co-conspirator’s admission people tween least two to the illegal plea, combined with a defective lim- object of the conspiracy, though par- other instruction, iting required ticipants indicted.”) reversal of the need not be (citing defendant’s conviction. See id. at 142. States v. Delpit, F.3d (8th reasoning, Cir.1996); The Toner Court’s articulated Krasovich, United States v. Goodrich, (9th Judge forms the foundation Cir.1987)). If two upon present which the case must be de- allegedly conspired, defendants and one cided: defendant has been plead- convicted or has view[,] guilty, the implication
From the common ed clear point sense is that the defendant guilty by guilty. other is also alleged point fellow This conspirator re-emphasized has been highly upon relevant in subsequent question of the Third Circuit guilt of another case alleged law: *14 conspirator. If A’s that he admission The guilty plea to a conspiracy charge conspired believed, with B pretty is it is carries with it potential more harm to hard to avoid the conclusion that B must the defendant on trial because the crime conspired have with A. This is one of the by requires definition the participation cases, therefore, logical- where evidence of another. The jury could not fail to ly probative is to be excluded because of appreciate significance of this and countervailing policy. some realize, There are would as the court said in a many such case, instances in the law. similar Harrell, United States v. (5th 606, 436 Cir.1970), The foundation of the F.2d 614 countervailing pol- that “it icy is the takes two to right every tango.” defendant proof stand or fall with the of the charge Gullo, 759, United States v. 502 F.2d 761 him, against made against somebody (3d Cir.1974). Consistent our holding Acquittal else. of an alleged fellow con- Toner, we have subsequently held on spirator is not evidence being for a man many occasions that guilty plea a witness’s So, likewise, for conspiracy. tried con- cannot be admitted for the purpose of of an alleged viction conspirator fellow proving a guilt. defendant’s See United a after trial is not against admissible as Cohen, (3d 796, v. States 171 F.3d 801 now being charged. one The defendant Cir.1999) (“[T]he plea agreements of co- right had to have his or innocence guilt conspirators are not prove admissible to determined presented the evidence guilt.”); the defendant’s United States v. him, against what has happened Gaev, (3d 473, Cir.1994) (“It 24 F.3d 476 is with regard to a prosecution criminal well established that plea agreements against someone else. We think that co-conspirators cannot be used as evi- the charge given upon point was of a guilt.”); dence defendant’s Govern- contrary to that rule and inadvertently, Virgin ment Mujahid, Islands v. course, deprived (3d (“It Cir.1993) defendant of a F.2d 990 115 is well- very protection substantial to which he established that a co-defendant’s guilty was entitled. plea is not prove admissible to the defen- guilt.”); Werme, (citations dant’s United States v. omitted). See id. high- As Toner (3d Cir.1991) (“We F.2d 939 113 have lighted, the danger of unfair long recognized that evidence of another when admitting of a co- party’s guilty plea is not admissible to defendant is more acute if charge prove guilt.”).2 defendant’s question is conspiracy conspira- because cy requires an agreement in, Implicit to, between two or and necessary the reason- See, more individuals. e.g., ing United States of Toner and subsequent cases is the 2. These cases alone majority's sumptively refute the supra Majority admissible. See accomplice's guilty plea that an pre- Opinion claim is at 664-65.
672 might he so that being fabricated mony plea is if a witness’s principle in return punishment severe receive a less all, must be admissible at admissible testifying. proving the than other purpose for some Cohen, 171 F.3d guilt. defendant’s to this although not relevant Finally, co-conspira alleged that an (holding 801 “to may be case, plea admitted admissible agreement plea tor’s wit- [the assertion the defense rebut Gaev, F.3d at 476 24 purposes”); “some agent as a acting ness] co-conspirator’s alleged an (holding that in the activities engaged he when valid for “some admissible plea is plea.” guilty] for[his the basis formed Thomas, v. purpose[s]”); Werme, F.2d at 114. 939 Cir.1993) (3d (holding 1205 addition, cases Third Circuit some co-conspirator’s guilty alleged an dicta) (in permis a fourth suggested have Mu purposes”); for “limited admissible example, in For purpose. or valid sible an (holding that F.2d at 115 jahid, that, may also be “[i]t suggested Gaev plea is ad co-conspirator’s guilty alleged a witness’s to introduce proper pur permissible ] for “other[ missible knowledge of his first-hand explain (holding Werme, at 113 F.2d poses”); misdeeds.” defendants’ plea is admissi party’s guilty that another added) (citing United States (emphasis purposes”); permissible “other[ ] ble for (9th Halbert, Cir. Gambino, 926 F.2d United States however, 1981)). how wondering, left I am Cir.1991) alleged (holding that *15 plea guilty aof witness’s the introduction admissible plea is co-conspirator’s guilty the for his basis evidence establishes into Thus, the purpose[s]”). for “some valid crime. knowledge of the firsthand or her inadmissible, of as a matter plea is guilty of all that the introduction Presumably, per a valid or law, for presented unless the wit is that plea guilty the establishes See, e.g., purpose. evidentiary missible It is the witness’s pleaded guilty. ness Thomas, F.2d at 1203-06. the basis testimony itself establishes then, rule general this despite We have knowledge of the for his or her firsthand of a witness’s the introduction against firsthand knowl has crime—the witness valid, permis- recognized three guilty plea, during or present was edge because s/he can plea a guilty for which purposes sible crime, not in the because participated s/he First, may into evidence. be admitted the crime. pleaded guilty to to rebut “in order defense admitted be B. attempts on cross-ex- persistent
counsel’s the co- raise an inference to amination case, defen- present because In the prosecuted and not been conspirators had the wit- to agreed challenge dants not single out being defendant] was [the plea on their credibility based nesses’ Inadi, United States prosecution.” with a more presented we are agreements, (3d Cir.1986). n. 2 in Toner: than we' question met focused what circumstances Second, Whether under guilty plea be admitted into evidence damp- court can admit in order “to examination” trial “on direct accomplice, over alleged credibility, and an guilty attacks on subsequent en the defen- objection, when party that the the defendant’s any suggestion to foreclose guilty not mention the concealing agrees evi- dant to was the witness producing any raise and not “to Gambino, This F.2d at 1364. on cross-examination dence.” accomplices’ pleas on which when de- inference most often situation arises rebut.”3 would admissible accomplice’s testi- to attack plans fense guilty plea/plea will raise the he joined in limine action the motion Both defendants 3. seek to examination nor alleged on agreements cross two to exclude accomplices' inferencе in relevant raise stated accomplices. motion rebut.” be admissible pleas of would of this that at trial part, “Defendant asserts Thomas, In United States v. Balancing danger prejudice unfair (3d Cir.1993), we first considered associated with the admission of the guilty more restricted issue. The District Court pleas against pursu value in Thomas had admitted co-conspira two ant to Federal Rule of Evidence guilty pleas evidence, tors’ into concluding ultimately held in Thomas that, “[i]n the proper admission the limited absence a proper purpose for the admis purposes of “aidfing] in assessing sion of guilty pleas, the curative in credibility,” [the “establishfing] witnesses’] structions of the district were court acknowledgment [witnesses’] of their sufficient prejudice remove the offense,” participation in the and “coun presented Thomas by the evidence of his ter[ing] the that [the inference witnesses] eo-conspirators’s pleas.” Id. [sic] prosecuted.” Thomas, had not been 998 1206. We concluded that we were “not left F.2d at 1204. In reviewing the trial with the requisite ‘sure conviction that the ” court’s decision to admit guilty pleas error did not the defendant’ evidence, into we noted that the Third and thus concluded that “the introduction recognized relevant, Circuit had two valid at trial of evidence of Thomas’s co-conspir permissible purposes for which an al ators’s[sic] was reversible er leged co-conspirator’s guilty plea could be ror.” Id. at 1207 (quoting United States v. evidence, introduced into “to blunt im Jannotti, 219-20 Cir. pact on a credibility 1984)). having of a brought Judge Rosenn filed a vigorous out dissent in defense,” on cross examination Thomas, arguing that prevent alleged and “to any improper co-con- inference spirators’ guilty pleas properly were defendant ad- has sin been “(1) mitted gled to bolster the prosecution out for while the co-eon- spirators co-conspirators prosecuted.” prosecution witnesses; have Id. not been reasoned, however, quell We inference that the co-con- neither *16 purpose justified spirators were admitting prosecuted the and that evidence, into Thomas ‘singled because the thus punish- defendant had was out’ for ment; agreed not to challenge the and establish the basis for witnesses’ the credibility pleas, co-conspirators’ based their guilty and firsthand knowledge of the because the defendant had crime testified.” Id. at they about which suggested he being selectively prosecuted. was See (Rosenn, J., dissenting). Contending id.4. We rejected the District Court’s claim that the alleged co-conspirators’ credibility that alleged the co-conspirators’ guilty would regardless be at issue of the de- pleas were admitted into evidence in order fense’s that it assurance would not attack to establish their acknowledgment of their the credibility respect witnesses’ with crime, participation in pointing the out that their guilty pleas, Judge Rosenn acknowl- defense counsel challenge did not edged the wit that his dissent was at odds with the nesses’ assertion that participated in Third in Toner. “One holding Circuit’s the crime. See id. argue could that credibility always is at Supplemental 23; Inadi, Appellants Brief for the at States v. 384 n. 2. supra Opinion see Majority at 6. note 1986)). Cir. We noted that the if defendant agreement violated "attempted the Thomas, 4. we concluded that the case raise an inference on that cross-examination hand differed United from States v. Inadi being unfairly singled [the was defendant] out alleged co-conspirator's where the guilty plea prosecution, steps additional remedial was admitted "to rebut defense counsel’s could have been taken.” Id. [then] at 1205 n. persistent attempts on cross-examination to Presumably, 1. steps” "additional remedial raise an co-conspirator's inference that the introducing alleged would included have prosecuted had not been the defen- [that] being singled co-conspirator's dant prosecution." was out for evidence on into Thomas, (citing rebuttal. Thomas, Rosenn’s effectively Judge fines dissent of position thus my
issue However, credibility witness’s holding 1209. that a Id. at Toner.” overrules position “automatically” be at that his argued Thomas will Judge Rosenn case likе in Ton- holding proposition, with in fact consistent Prior issue. er. testifies that he co-conspirator “[w]hen credibility only at issue is with which part in the crime took
[A] a relevant about he she testifies when or will charged, his defendant Moreover, Toner disputed fact. had not aris- automatically implicated,” be of a plea a guilty merely states jurisprudence. The in Third en Circuit used to establish be witness cannot of an the extension such of consequences Thus, if the even of the defendant. guilt prior case interpretation of our expansive always admissible opin- by majority’s illustrated law are credibility establishing the purpose ion in this case. witness, Ton- that does not overrule limiting require still er: Toner would II. A. by instruction, given similar ones 403 states Rule of Evidence case, to present in the judge the trial that: understands insure relevant, ex- may be Although evidence to estab- plea cannot be used probative if value is substan- its cluded the defendant. guilt lish danger of unfair tially outweighed by the Id. issues, or of the prejudice, confusion however, cannot, implica- accept I jury, or considerations misleading I just cannot explanation, as tions of this time, need- delay, waste of of undue there position, unless accept majority’s of cumulative evidence. presentation less of the weighing meaningful been a has Thus, admissible that is otherwise against guilty pleas probative value of guilt sometimes must required prejudice, unfair danger of unfair danger excluded because Federal Rule of Evidence See, e.g., to the defendant. C. Sriyuth, United States (3d Cir.1996). Thomas, to our decision in Subsequent court whether trial again addressed Court, balancing the dan- District into evidence by admitting erred prejudice associated ger of unfair co-conspirator, even alleged against Bonjo and Martin’s *17 not to chal- though agreed the defendant value, that the probative their concluded co-conspirator’s credibili- lenge the alleged out- substantially not probative value was would any inference that ty nor to raise prejudice. of unfair weighed by danger plea admissible. See make the cоnclusion, majority, endorsing Gaev, 474-79 United States states: Cir.1994). nearly On facts identical argument on The District Court heard Thomas, that the held in Gaev those in we motion in limine [sic] the defendant’s had co-conspirators’ guilty pleas alleged concern- accompanying arguments and See properly admitted into been evidence. plea agreements Bonjo and Martin ing requisite conducting the id. at 479. In in- separate at three guilty pleas and concluded, consis- balancing, Rule proceeding: this criminal during stances in Thom- tent with Rosenn’s dissent Judge (1) the testimo- May prior to on as, testifies co-conspirator that “[w]hen (2) 806); (App. at Agent FBI Cook ny of part in the crime with that he .took 9, 1995, testimony of prior May charged, his the defendant is 1768); Moock, (App. Jr. Dr. Paul C. implicated.” automatically will be ruling trial added). subsequent (emphasis Ulti- F.3d at 477 motions. upon post-trial the defendants’ beyond the con- mately, in we went Gaev instance, At each the District Court All right, I weighed have all of the fac- carefully meticulously weighed the I tors and think in the context of this ... factors of credibility, selectivity, and case we have had and from what I know knowledge pro- witness that inform the of or by way have heard of reference to bative value versus effect prejudicial Julia Blum [Bonjo] Martin, and Penny I required by standard Federal Rule 403. think it sounds to me if they are instance, At each the District Court’s higher up somewhat in the structure. balancing comprehen- was careful and if they And testify jury is going to concluding probative sive val- certainly wonder whether or they ue of and Martin’s agree- have charged. been going It’s to won- ments and outweighed any der perhaps they what prom- have been prejudicial effect. ised prosecutor if anything and what they may getting in return Majority Opinion record, at 669-70. The their testimony. however, belies this contention. I think in all weighing those factors with 3, 1995, May prior On to the testimony possible prejudice that I going am Cook, Agent FBI the District Court allow the to bring Government out the first argument heard on the defendants’ fact plea and fact of in limine. App. motion at 806-17.5 guilty plea agreement.,.. hearing argument motion,
Aftеr on the I think exactly this is like the Gave [sic] District Court did not “carefully and me- case, only here, there are more reasons ticulously weigh[ the ... ] factors of credi- because many people there so are who bility, selectivity, and witness knowledge have testified and in testimony probative inform the value versus have prejudicial indicated certain amount of required effect standard 403,” wrong doing. they pretty Rule And nor did the District ob- —it’s vious haven’t “careful[ly] charged Court been and I think comprehensively]” very it raises a question conclude “that the serious value of Bon- jo minds of agreements jury, especially and Martin’s as to people pleas before, I outweighed any prejudicial who are as higher up effect.” said Rather, simply District Court the structure. stated: What are getting “I’ll all the I take time have available for their how is it that testimony, these think App. about this.” people at 816. haven’t charged been and it’s bet- ter in my opinion know it 9, 1995, May On prior to Dr. Paul C. all. That’s the basis the reason. testimony, Moock’s the District Court App. at The language ruled on the 1771-72. defendants’ motion in limine. quoted clearly above indicates that District Court did hear further motion, argument on District did nor little if balancing did the Dis- simply trict Court but instead “carefully concluded that meticulously ... weigh[ ] the and Martin’s credibility, factors se- were admissible. fact, lectivity, and knowledge witness in- District Court mentioned *18 probative form prejudicial the value two of the factors majority versus high- effect required by lights, standard glossing Rule over them in cursory form:first, 403.” The simply District Court made the “what credibility, they get- are following statement: ting and, second, testimony,” for their se- 3, 1995, suggests May The record your that Any- attention to Gave [sic] the case. actually the last time that the District Court any one wish to additional argu- make arguments heard ments, on the defendants’ motion you may do so. in limine. District stated: Court App. Regardless, exchange at 806. this on 3, 1995, right, you May point All I asked to is the point come at this first in the record at so that we could have a opportunity arguments last to which the District Court heard on argue the motion in limine I addressed the defendants’ in limine. motion however, commitment, and fo- the gards it that these “how is prosecution,
leetive
Moreover,
charged.”
value associated
probative
been
on the
haven’t
cuses
people
District Court
by
made
the
is
assessing
no mention
the
jury in
assisting the
with
not to raise
commitment
of the defendants’
response
in
accomplices
credibility of the
of admit-
possibility
the
or of
these issues
response
in
jury speculation
to
if the defendants
on rebuttal
ting
pleas
the
attacking
cross-examination
defense’s
major-
their commitment.
reneged on
the trial
of
stage
witness’s
—a
the District
of
characterization
ity’s
if the defendants
not occur
which need
“careful,”
analysis as
Rule 403
Court’s
commitment.
up
lived
to their
un-
is
“comprehensive”
“meticulous”
analy-
Rule 403
cursory
by this
dermined
focus,
majority
the
adopting
this
sis.
out that
pointing
the line between
skirts
probative val-
pleas may have
guilty
these
B.
pleas
guilty
declaring
the
ue and
of Evidence
Federal Rule
As set forth
evidence
constitute substantive
themselves
majority acknowledges,
403, and
the
as
letter
It is black
guilt.
of the defendants’
whether the District
turns on
this case
acknowledges, that
law,
majority
as the
val-
probative
weighed the
properly
cannot
admitted
pleas
guilty
Bonjo and Martin’s
ue of
guilt.
aof defendant’s
substantive evidence
prejudice to
danger of unfair
against the
(“[T]he
Cohen,
plea
The District
(“It
Bonjo and
of
Martin’s
that a co-defen-
probative value
is well-established
eliminating
to
pleas was limited
to
not admissible
guilty plea is
dant’s
prosecution
appearance of selective
Werme, 939
guilt.”);
the defendant’s
prove
what
witnesses
informing
(“We
long recognized
have
F.2d at 113
exchange
for their testi-
receiving
were
party’s guilty
another
evidence
however,
beyond question,
It
mony.
prove
defendant’s
is not admissible
type
value of this
probative
Nevertheless, the de-
ignoring
guilt.”).
minimized
would have been
information
“raise
fendants’
agreement
not to “raise
commitment
the defendants’
exam-
agreements
cross
guilty plea/plea
on
agreements on cross
guilty plea/plea
any inference on
nor
to raise
[ ]
ination
to raise
inference
nor[ ]
examination
accomplices’ pleas
which
accomplices’ pleas
which
majority
to rebut”
would be admissible
The credi-
would be admissible
rebut.”
that,
light
of defen-
appreciate
fails
attack,
any quid pro quo
based on
bility
to raise the issue of
dants’ commitment
from
that the witnesses derived
probative
pleas,
value
if
place
would not take
agreements,
More-
negligible.
Martin’s
employing
from
refrained
defendants
over,
presented
will then be
cross-examination.
of attack
line
probative value
minimal
that has
convinced, moreover, that
firmly
I am
improperly imply
be-
but
value cannot be
the evaluation
*19
Luk-
pled guilty,
Bonjo and Martin
cause
defen-
a
made
consideration
without
guilty.6
are also
majority disre-
esh
Universal
dants’ commitment.
IV and of
Rule 608 in Section
aspects
discussion of
further with two other
of
6.
I will deal
V.
limiting
in
my
instructions
Section
pleas in
probative
guilty
value of the
c.
conspiracy
cessful
to commit Medicare
fact,
fraud.
In
found
Lukesh
Having
probative
considered the
value
and Universal had devised a scheme to
Bonjo
guilty pleas,
of
and Martin’s
defraud Medicare by fraudulently re-writ-
danger
prej
must next assess the
of unfair
ing
altering patient
admitting
guilty
udice associated with
in-
evaluations to
majority
into evidence. As the
ac
crease the likelihood that Medicare would
knowledges,
previously
and as we have
reimburse Universal for medical services
noted,
conspiracy
to a
“[t]he
that were not otherwise reimbursable.
charge
potential
with it more
carries
harm Bonjo
pled
and Martin
particiрat-
to the defendant on trial because the crime
in
ing
this scheme. Ultimately, on the
requires
participation
definition
us,
facts before
the distinction that
Gullo,
another.” United States v.
502 majority attempts
draw,
between the
(3d Cir.1974).
759,
It is true that
“substantive” count of mail fraud under
the defendants were convicted of mail
section 1341 and the “non-substantive”
fraud
conspiracy.
and not of
Neverthe
count of conspiracy to commit mail fraud
less,
conviction,
the offense of
as it was
under section
is a distinction without
trial,
presented at
in many respects was
Thus,
a difference.
danger
of unfair
conspiracy.
similar to a
In order to obtain
prejudice associated with the District
a mail fraud conviction under 18 U.S.C.
Court’s decision to admit Bonjo and Mar-
§
government
prove
must
guilty pleas
tin’s
into
is not
the defendant devised a scheme to de
significant
virtually
but also
identical to
fraud, that
participated
defendant
danger
prejudice
unfair
associated
the scheme with the specific intent to de
with admitting into evidence
fraud and that the defendant could reason
pleas of two alleged co-conspirators.
ably foresee use of the mails. See United
Feola,
671, 693,
States v.
420 U.S.
95 S.Ct.
(1975);
versal,
Bonjo, participated
together
prejudice
unfair
to the defendants. The
the scheme to defraud
money
and obtain
probative
Bonjo
value of
and Martin’s
Indeed,
from the
program.
Medicare
guilty pleas
negligible
defendants
—the
appear
would
could
agreed not to “raise
guilty plea/plea
have elected to indict the
defendants on
agreements on cross examination nor
to[ ]
conspiracy count as well as on the substan
raise
inference
which the accom-
tive mail fraud counts.
plices’ pleas of guilty would be admissible
find, however,
I
majority
trivial-
to rebut.”
principal
effect of this
heightened danger
preju-
izes the
of unfair
agreement
is a reduction
situation,
presented by
dice
type
this
side,
value of
evidence.
flip
On the
requires
situation that
scrutiny
closer
unfair
danger of
associated
Opin-
the Rule 403 balance. See Majority
Bonjo
and Martin’s
case,
ion at
In
the context of this
fraud,
law,
significant
aas matter of
majority’s characterization of the offense
—mail
defraud,
involves
scheme or artifice to
to which Bonjo
pleaded
and Martin
allegedly participat-
and Martin
as a
legally
count[
“substantive
while
]”
ed in
accurate,
this scheme with and under the
is also
misleading.
the case
Thus,
Lukesh,
direction of Universal and Lukesh.
Universal and
section 1341
essentially
criminalized what was
if
a suc-
and Martin’s admission that
*20
circuits,
definitely not the
believed,
in
it. is
law other
it is diffi-
mail fraud is
committed
Compare,
in
Third Circuit.
of law the
and rule
that Universal
to conclude
cult not
Mealy, 851 F.2d
e.g.,
States v.
fraud as well. As
mail
Lukesh committed
Cir.1988)
(7th
(“The well established
a
Toner,
ha[s]
in
defendant
“[a]
noted
that,
in
circuit is
on direct exami-
rule
this
deter-
or innocence
guilt
his
right
have
nation,
may
direct
prosecutor
elicit
presented against
by
mined
the evidence
plea
witness’s
testimony regarding the
with re-
him,
happened
has
by
what
plea
actually
agreement and
introduce
prosecution against
a
gard to
criminal
evidence.”)
Gambino,
into
agreement
Toner,
at 142.
173 F.2d
else.”
someone
alleged
that an
(holding
III. evidence, the plea is admitted into be instructed that must and Martin’s By concluding guilt be used to cannot establish into properly admitted guilty pleas were may the defendant. this be While in evidence, endorsing holding by alone, interpretation of read proper Toner that, ignores the fact majority in have cases the Third Circuit subsequent time, progeny its have over Tonér that, purpose, proper absent a recognized proposition that stand for the come to pleas alleged co-conspirator an co-conspirators are not ad- in terms of the are inadmissible. Framed guilt of the defen- missible to establish balancing approach required only be introduced into evi- dant and can proper Evidence Rule of absent evidentiary purpose. a proper dence for alleged of an purpose, the value Gambino, See, States v. e.g., United substantially co-conspirator’s guilty is Werme, Cir.1991); F.2d preju- danger of unfair outweighed 113-14; at 115. Mujahid, at dice to the defendants. majority’s reasoning, unless Following the from I willing precedent, is to refrain light defendant our established entirely, cross-examining a witness the trial court Universal believe issue, into credibility always by admitting will erred be always alleged of two co-schemers face of guilty plea will and his or her rule of commitment this be the defendants’ admissible. While guilty pleas] of the majority quick [introduction to focus on follow- witnesses' 7. The Gambino, plea agree- ing "While F.2d at statement in Gaev: here.” proper response statement, ments have been admitted clearly often dic- 1363. This anticipated witness's to actual or attacks on a tum, any supporting cite to is made without necessary always credibility, attack is not any other law in the Third or case Circuit introduction,” Gaev, justify support Such a statement is without circuit. support proposition, 477-78. To jurisprudence, Third Circuit foundation following passage in Gaev Court cites dictum, merely it alone should it is since case, began Gambino: "In this the defendants affirming provide the District the basis govern- their attack Bonjo and Martin’s decision to admit Court’s opening ment’s witnesses in their statement. guilty pleas into evidence. Yet, attack, even of this in the absence
679
not,
cross-examination, challenge
would
ties that formed the basis for
guilty]
[his
credibility
government’s
plea.”).
wit
any
inferences that would
nesses
raise
analysis
demonstrates,
As our
above
guilty
make the
admissible. Absent when a
agrees
defendant
not to “raise the
proper evidentiary purpose,
a trial
guilty plea/plea agreements on cross exam
alleged
court’s decision to admit an
co-
ination nor
any
to raise
inference on which
conspirator’s
plea
guilty
improper
accomplices’ pleas
of guilty would be
alleged
an abuse of discretion. An
co-con
rebut,”
admissible to
the Rule 403 balance
spirator’s guilty plea cannot be admitted
clearly tips in favor of excluding the evid
purpose
proving
for the
a defendant’s
If
alleged
ence.8
an
co-conspirator’s guilty
(“[T]he
Cohen,
guilt. See
introduce
inadmissible”) (citing Homan
credibility is
to the witness’s
challenge
of a
the absence
(8th
States,
767, 772
v. United
devi-
majority’s holding
The
credibility.
Cir.1960)).
mandated
from the outcome
only
ates
holding
majority’s
the
con-
only
Not
is
at odds with
holding is
Rule
its
by
608(a),
holding
Rule
its
is also
trary to
(b).
608(a) and
Evidence
Rule of
608(b)
608(b). Rule
states:
odds with Rule
608(a) states:
Rule
conduct of
of the
Specific instances
at-
may be
credibility of a witness
witness,
of
or
purpose
attacking
for the
by evidence
supported
tacked or
credibility,
other
supporting
witness’
sub-
reputation, but
opinion or
form of
n (1) the evi-
provided in
of crime as
than conviction
ject
to these limitations:
proved by extrin-
may not be
Rule
to character for
only
refer
may
dence
however, in the
They may,
sic evidence.
(2)
untruthfulness, and
truthfulness or
court,
if
discretion
admissi-
character is
of truthful
evidence
untruthfulness, be in-
or
truthfulness
of the wit-
the character
only
ble
after
on
quired into
cross-examination
has been attacked
ness for truthfulness
(1) concerning the witness’ char-
witness
or oth-
reputation evidence
by opinion or
untruthfulness,
acter for truthfulness or
erwise.
the character
concerning
or
608(a), absent an
under Rule
Arguably,
truthfulness or untruthfulness
anoth-
credibility,
Bonjo
Martin’s
and
attack
character
witness as to which
er
inadmissible.
pleas are
their
being cross-examined has
witness
testi-
608(a),
to Rule
Advisory
*23
be serious
Consequently,
the
conclusion
to constitute re-
See,
Thomas,
e.g.,
versible error.
Bonjo
guilty pleas
and Martin’s
were
(“In
at 1206
the absence
properly
proper pur-
admitted into
is not
only
evidence
pose for
pleas,
the admission of the
contrary
to the result mandated under
the curative instructions of the district
Federal Rule of Evidence 403 but
at
also is
court were nоt sufficient
to remove the
odds with the Federal Rule of Evidence
prejudice to
presented by
Thomas
the evi-
608.10
dence
of his
co-conspirators’
V.
(“There
pleas.”);
24 F.3d at
conclusion,
majority’s
While the
also
cases where the
guilt
inference of
District Court did not abuse its discretion
co-conspirator’s plea
from the
agreement
by admitting
Bonjo
into evidence
and Mar-
sufficiently strong
limiting
even
guilty pleas,
tin’s
is disturbing, equally dis-
effectively
instructions will not
contain
it.”).
turbing
majority’s
is the
conclusion
The majority
only
concludes that
provided
“the detailed limiting
prejudicial
instructions
typically
by
effect is
cured
credibility
majority's
is the cornerstone of the
the framework set forth in
Rule
holding.
arguing
Bonjo
that the introduction of
and
guilty pleas
probative
Martin’s
has less
val-
agreement
ue
the
than
defendants'
not to
out,
majority points
arguable
10. As the
it is
guilty pleas
mention the
on cross-examina-
gov-
whether Federal Rule of Evidence 608
any
tion or to raise
inference which these
Bonjo
erns the admission of
and Martin’s
rebut,
guilty pleas might
majority
the
over-
guilty pleas.
supra Majority Opinion
looks the fact that “evidence in the form of
667-68,
However,
note 13.
even if one were
opinion
only
reputation”
or
is admissible
govern
to conclude that Rule 608 does not
credibility
after the
of a
has been
witness
Bonjo
guilty pleas,
admission of
and Martin's
Majority Opinion
attacked. See
at 667.
provides insight
it is clear that Rule 608
into
Thus,
comparison
under Rule
appropriate balancing required
under
required
value
under Old Chief
Specifically,
Rule 403.
Rule 608 allows a
majority
and alluded to
would be
party to introduce “evidence in the form of
purely hypothetical
unnecessary;
ab-
opinion
reputation”
support
or
to attack or
prior
credibility,
sent a
attack on
"evidence
only
of a
witness
after
cred-
is,
opinion
reputation”
in the form of
as
ibility of the witness
been
has
attacked. The
law,
a matter of
inadmissible.
majority
Bonjo
contends that
and Martin's
Finally, contrary
majority's sugges-
to the
guilty pleas are
tion,
admissible
bolster their
potential applicability
of Rule 608
credibility despite
agreement
the defendants’
only
was not
discussed at the en
oral
banc
Bonjo
credibility.
not to attack
argument,
supple-
Martin's
filed a
argument
This contention is at odds with the framework
mental brief after oral
to address
Supplemental
Appel-
the issue. See
Brief of
set forth in Rule 608. To admit
America,
lee United States
Filed Novem-
guilty pleas,
prior
Martin's
absent a
attack on
("At
argument
ber
oral
before
credibility,
their
when similar
8, 1999,
en banc Court on November
would,
law,
as a matter of
be admissible un-
pre-
had
raised two issues which
testifying
der Rule 608
after a
witness's
(1)
viously
appeal:
been addressed in this
attacked,
credibility had been
undermines the
The relevance of Rule 608 of the Federal
majority's
analysis.
Rule 403
entire
Evidence;
applicability
Rules
Moreover,
States,
majority's analysis
of Old
of Luce v. United
469 U.S.
(1984).”).
v. United States is
S.Ct.
also
odds with
dismisses Thomas, or follow such comprehend See, cannot juries e.g., testimony. instructions. limiting contends, If, majority F.2d at 1205. in limiting follow juries comprehend and analysis ob- Moreover, majority’s by the Dis given such as those structions key to be the issue: I consider scures what case, surely the better in this abused its discretion trict Court The District Court Band on- evidence Martin admitting into one most consistent approach, and the defendants’ ob- pleas, over the jo’s guilty jurisprudence, is to exclude Third Circuit the defendants despite the fact jection, and to Martin’s guilty plea/plea “raise agreed not to members instruct nor to [ ] cross examination agreements only with the concern themselves should the accom- on which any raise inference and not or innocence of defendants guilt admissible would be plices’ prosecution possibility with the of selective limiting instruction to rebut.” While persons in other or the involvement may render an a District Court given by Majority any alleged supra, scheme. See *24 evidentiary ruling otherwise erroneous Thomas, 667-68, 13; 998 Opinion at note harmless, cannot limiting a instruction Texas, 1205; Spencer cf. 385 F.2d at an otherwise errоneous eviden- transform 554, 562-63, 648, 17 L.Ed.2d 87 S.Ct. U.S. legally proper into a evidentia- tiary ruling (“[T]his ef type prejudicial 606 Ultimately, we must decide ry ruling. inhere in criminal acknowledged fect is Court, whether, time it District at the justified practice, grounds but it is on the limine, in motion ruled on defendants’ jury expected is to follow that ... Bonjo by admitting abused its discretion limiting in this evidence to its instructions pleas into evidence. and Martin’s function.”). following proper Instead so, focus on the To do we must Thomas, majority relies holding our prejudice unfair asso- danger value and circuits, citing one precedent other with and Martin’s ciated the Fifth and one case case from Circuit Court’s and not on whether the District Circuit, support from the Eleventh its any resulting, cured limiting instructions conclusion that and Martin’s prejudice. unfair pleas presumptively are admissible. See Moreover, danger prejudice of unfair Ultimately, Majority Opinion at 664-65.11 baffling above renders both highlighted majority’s that Federal conclusion the District Court’s deci- confounding presump Rule of Evidence 403 “creates a it sion to instruct the “that admissibility” respect to an tion of agree- consider the and/or conclu alleged accomplice's guilty plea, a ment as evidence that the defendant majority’s hold sion that is crucial to the with which he is guilty of the offenses unsupported by Third ing, preced Circuit than to instruct the charged,” rather that it itself with the ent.12 need not concern 922(g)(1) majority pursuant § to 18 U.S.C.
11. The Eleventh Circuit case that
cution
Inc.,
cites,
felon,
Raybestos-Marihattan,
possession
handgun by
Hendrix v.
a
a convicted
(11th Cir.1985), is a civil tort
cretion
content of their
to a collateral matter —the
The Court held
underlying conviction.
than an ele-
stipulation should cross-examination —rather
the defendant’s
government
of the offense that the
govern-
and that
ment
have been received
prove beyond
a reason-
should had the burden
introduction
evidence
ment’s
promised that
limited,
doubt. The defendants
notwithstanding the
able
have been
prosecu-
they
would not assert
selective
prerogative
government’s
general
defense,
they
would not im-
at
tion
evidence. See
U.S.
choose its own
co-conspirators
ground
on the
peach
reasoned
S.Ct.
stipula-
they
were biased because
had
to allow such
proper
it was
guilty pleas.
government
has
regarding
entered
tion because the
felony
argued
right
that it had the
to introduce
prior
con-
name and nature
(assault
pleas,
though
bodily inju-
evidence of the
even
causing serious
viction
promised
pursue
not to
balancing test.
the defendants
ry) failed the Rule 403
cross-examination,
because
these lines
and nature of the
Although the name
jurors
independently reach the con-
might
certainly
prove
offense were
relevant
government
engaged
clusion that the
had
had
convicted of a
that the defendant
been
prosecution
or that
the co-
selective
178-79,
at
felony, see id.
S.Ct.
conspirators
unduly
were biased and were
stipulation
more
defendant’s offered
was
shifting blame
defendants.
fact, it
conclu
probative evidence—in
government prof-
The evidence that the
sive evidence—that the element was estab
186, 190,
co-conspirators’
pleas—
id. at
WTten one the value value on the issue of as witness and danger of unfair inherent in the pleas.” Majori- [their] introduction scenarios, these two the former far better me, least, ty argument 667. To this comports with the dictates of Rule 403 and If, complying makes no sense. with their the Court’s admonitions in Old Chief. stipulation, offered the defendants do not Judge suggested presenta- Roth’s mode of challenge co-conspirators’ credibility tion takes less time and is more direct. In presentation, jury her and the the suggested mode of District Court instructs judge definitively jury co-conspirators makes to the clear not to infer that are
686 notes, pre- correctly our majority As the point is credibility on this biased, their admissibility of a on the need for evi- cedent issue no There is unimpeached. always follow not, not point. guilty plea does dence, on this probative or procedure instead, govern- have the line. The en banc majority, would a consistent credibili- co-conspirators’ opportunity a valuable us with provides ment bolster with is- challenged important it positions ty reconsider our before to the admoni- contradiction presented evidence—in that here. such as sues 608, points Judge as Roth in Rule tions that begin proposition I with to at- defendants then invite the out—and provide Evidence do not Rules of Federal credibility on this issue. witnesses’ tack the covering rule situation a hard and fast time, likely to more is more This takes far Instead, question of today. before us point, puts at issue a jury, confuse the co-conspir- evidence of whether to admit trial, clearly need to the when tangential in of his the trial ator witness’s with it be, when it carries especially must sub- alleged confederate or her prejudice. The of unfair dangers the twin Fed. required by jected balancing to the grounded are Rules of Evidence Gaev, that emphasized R.Evid. 403. fairness, see Fed. truth, economy, and that of Federal the “standard remains 102; approach majority’s R.Evid. rec- Procedure 403” and Rule of Evidence aspirations. ignore these seems ... be cases ognized “[t]here present than Chief, rather As Old co- guilt from the where the inference unfairly prejudicial potentially jury with sufficiently plea agreement is conspirator’s im- against instruct and then evidence will limiting instructions strong that even inference, thing to do the correct proper Gaev, F.3d effectively it.” 24 contain accept the defendants’ case was to at 478. jury then to instruct the as stipulation and majority’s position I from the dissent stipulation proper- to deal with the to how permitting as analysis I view its because Chief, making that meant sure ly. In Old introduce stipula- what the understood in all co-conspirator witness’s had de- that the government tion meant: cases, provides court long as the district ele- felony status finitively satisfied jury. This a curative instruction felon-in-possession-of-a-firearm ment in its principle inconsistent with the established Here, meant it should have prosecution. in this circuit that witness’s the defendants instructing of the defen cannot be used as evidence prosecu- asserting a selective would not be Cohen, v. guilt. dant’s United States co-conspirator wit- tion defense or (3d Cir.1999); 171 F.3d 801 receive a attempting to were nesses F.3d 476 Cir. States v. by shifting deal blame to sweetheart Thomas, 1994); v. F.2d United States Because the District defendants. (3d Cir.1993); Government manner, agree I proceed in this did not Mujahid, v. Virgin Islands conclusion my fellow dissenters’ (3d Cir.1993); United States its discretion— the District Court abused (3d Cir.1991); Werme, 108, 113 mind, court did my much as the district Toner, United States in Old Chief. (3d Cir.1949). majority’s holding that *28 The SLOVITER, Judge, dissenting. Circuit permit admissible to guilty plea is credibility of the wit jury to assess the persuasive I Roth’s dissent. join Judge ness, on in absence of an attack even joined I separately I because write credibility, dispel jury or to the witness’s opinion United States if prosecution, even (3d Cir.1994), concern about selective which the opinion on contended, trans defendant has not so Roth Judge with which majority relies and Fed. case-by-ease analysis under mutes a issue. takes aspect of admissi- general admissibility R.Evid. 403 into a rule ous of the of a bility. justification I see no for such unique in this setting. Under the rule.1 case, facts the defendants do not deny they participated in the same RENDELL, Judge, dissenting: Circuit contend, They conduct as witness. pleased join my colleague’s I am however, this conduct was not a and I write dissenting opinion, excellent crime. When participant another testifies separately only go step one further than offense, guilt that she admitted her of the respect application she did with she not tells the that “what we balancing Rule 403 test. I submit crime,” did is a says but she also “I owned value of a is not it; up why Why won’t the defendants? time, just negligible, but nil. At the same they putting you through are a trial when case, given unique setting of this there guilty?” prejudice we are probable merely danger prejudice, but is a case such as this is and far immense is obvious real. relevance, outweighs the especially be- majority saying seems to relevance, submit, cause the I illusory. equated relevance is to whatever the know, like which I might believe is
precisely how the District Court viewed ruling any
the issue. How is our different letting prosecution
from introduce a Boy badges and lie detec- Scout
tor results direct examination because a
jury may if telling wonder the witness is Why
the truth? should we concern our- jury may selves wonder about AMOS; Harvey Bloxom; Granville W. credibility prosecution? and selective Holt; Teddy Jones; Michael A. T. they gov- What relevance do have to the Madison; Meggin Charles Howard I ernment’s case? submit that have son; Prymeran; Gary Ralph; Boris absolutely none. Smith; Smith; Michael Hilman John prosecu- Even if and selective Smith; Lewis William Calvin J. Whit govern- tion were somehow relevant ing; Absher, Dennis Brian Plain case, prosecution satisfy ment’s could Appellants, tiffs — jury’s curiosity just as to these issues easily by engaging following as ex-
change with the witness: Rhodes, Plaintiff,
Question: Winfried Lee you being prosecuted by Are government? Yes.) (Response: MARYLAND DEPT. PUBLIC OF
Question:
you
Have
you
admitted that
AND
were involved in the events
SAFETY
CORRECTIONAL
SERVICES;
Roxbury
you
testify-
about which
are
Correctional
ing?
Institution,
Maryland;
Hagerstown,
Yes.)
(Response:
Lanham, Sr.,
Richard
in his official
Commissioner, Maryland
capacity as
This line of questioning addresses credibil-
Correction;
Division of
P. Gal-
John
ity
prosecution
and selective
while
leaves
ley,
capacity Warden,
in his official
open
question
guilt
the crucial
Institution;
Roxbury
charged,
danger-
offense
which is
most
Correctional
significant
lenged
aspects
participation
It is
that defendants here did not
critical
of Gaev’s
prosecution
[of
contest the acts on which the
in the activities that formed the basis
*29
based, whereas in Gaev the defendant "chal-