United States v. Kareem Bailey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-2128

_____________

UNITED STATES OF AMERICA

v.

KAREEM BAILEY, a/k/a Baby Boy

Kareem Bailey,

Appellant

_____________

No. 15-2246

_____________

UNITED STATES OF AMERICA

v.

TERRY DAVIS, a/k/a Mace

Terry Davis,

Appellant

_____________

No. 15-2275

_____________

UNITED STATES OF AMERICA

v.

LAMAR MACON, a/k/a Gunner,

a/k/a Gunna, a/k/a Mar

Lamar Macon,

Appellant

_____________

No. 15-2276

_____________

UNITED STATES OF AMERICA

v.

DOMINIQUE VENABLE, a/k/a Poppi-What-You-Need

Dominique Venable,

Appellant

Consolidated Appeals from the United States District Court

for the District of New Jersey

(D.N.J. Nos. 1-14-cr-00050-009, 1-14-cr-0050-008,

1-14-cr-00050-014 & 1-14-cr-00050-015).

District Court Judge: Honorable Joseph E. Irenas

_____________

Argued: April 28, 2016

Before: McKEE, Chief Judge, 1 JORDAN and ROTH, Circuit

Judges

(Filed: October 18, 2016)

_____________

John M. Holliday [Argued]

Golden Crest Corporate Center

2273 State Highway 33, Suite 207

Trenton, New Jersey 08690,

Counsel for Appellant Kareem Bailey in No. 15-2128

1

Judge Theodore McKee concluded his term as Chief of the

United States Court of Appeals for the Third Circuit on September

30, 2016. Judge D. Brooks Smith became Chief Judge on October

1, 2016.

2

Gina A. Capuano [Argued]

200 Haddon Ave.

Westmont, NJ 08180,

Counsel for Appellant Terry Davis in No. 15-2246

William R. Spade, Jr. [Argued]

1525 Locust Street, Suite 1400

Philadelphia, PA 19102,

Counsel for Appellant Lamar Macon in No. 15-2275

James R. Murphy [Argued]

947 Sate Road, Suite 205

Princeton, New Jersey 08540

Counsel for Appellant Dominique Venable in No. 15-

2276

Mark E. Coyne

Norman Gross [Argued]

Office of United States Attorney

Camden Federal Building & Courthouse

401 Market Street

Camden, NJ 08101

Counsel for Appellee

_____________

OPINION

_____________

McKEE, Chief Judge.

This appeal arises from the convictions of four men

belonging to a violent heroin trafficking organization that

operated out of Atlantic City, New Jersey. Over the course of

two and a half years, law enforcement officials documented

the extensive reach of this organization and the crimes its

members committed. Thirty-four people were charged with

drug-trafficking related offenses as a result of the

investigation. They include the four defendant/appellants

here: Kareem Bailey, Terry Davis, Lamar Macon, and

3

Dominique Venable.2 A jury convicted them of conspiracy to

distribute and possess with intent to distribute heroin within

1,000 feet of a public housing complex, in violation of 21

U.S.C. § 846, 21 U.S.C. § 841(a)(1) & (b)(1)(A), and 21

U.S.C. § 860, use or possession of a firearm in furtherance of

that drug trafficking offense, in violation of 21 U.S.C.

§ 924(c)(1)(A)(i), (ii), (iii) and 18 U.S.C. § 2, and use of a

communication facility to further a drug conspiracy, in

violation of 21 U.S.C. § 843(b). The jury also convicted Terry

Davis of possession of a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1).

On appeal, Bailey, Davis, Macon, and Venable make

four principal arguments for reversal. They contend that: (1)

the evidence presented at trial was insufficient to support their

convictions; (2) the district court should have suppressed the

government’s wiretapping evidence; (3) the district court

violated Federal Rules of Evidence 404(b) and 403 when it

admitted certain evidence regarding a drug-trafficking-related

murder and a drug-trafficking-related assault; and (4) the

district court abused its discretion when it declined to order a

mistrial on two different grounds. Bailey further contends that

the district court abused its discretion in admitting evidence

of his past convictions for possession of cocaine with intent to

distribute and possession of a firearm. The defendants’ first,

second, and fourth arguments are entirely without merit.

However, their Rule 403 claim merits serious consideration.

As we will explain, we agree that the district court violated

Rule 403 when it admitted certain evidence. Nonetheless,

given the overwhelming amount of other evidence of guilt,

we hold that the error was harmless. Accordingly, we will

affirm the convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Derry Drug Trafficking Organization

Bailey, Davis, Macon, and Venable were associates in

a violent heroin-trafficking organization that operated out of

the Stanley Holmes Public Housing Village in Atlantic City,

New Jersey. This organization was led by Mykal Derry and

known as the Derry Drug Trafficking Organization (DDTO).

2

For the sake of simplicity, we will refer to the

defendants/appellants as either “defendant” or “defendants”

throughout this opinion.

4

Derry purchased large quantities of heroin from three New

Jersey suppliers and distributed the heroin in “bundles” (ten

wax envelopes of heroin) and “bricks” (five bundles) to

members of the DDTO. These DDTO associates then sold the

heroin in and around the public housing complex.

Investigators estimated that Derry received 717 bricks of

heroin for distribution from October 2012 to February 2013.

The DDTO maintained control of its drug-trafficking turf by

assaulting, robbing, and killing rival drug dealers.

In July of 2010, the FBI began investigating the

DDTO in conjunction with state and local law enforcement

agencies. At first, confidential informants and undercover

police officers made a series of controlled buys that were

captured on audio and video recordings. By October, officers

had identified Mykal Derry as the leader of the organization.

For the next two years, police relied on confidential

informants, controlled buys, physical surveillance, phone

records, pen registers, and intercepted prison phone calls

placed from the Atlantic County Jail to map the scope of the

DDTO’s operations.

However, the investigators eventually found these

techniques inadequate to uncover the full reach of the

conspiracy. In an attempt to remedy this, the government

secured authorization for a wiretap from the United States

District Court for the District of New Jersey in October 2012.

Wiretaps on the phones of Mykal Derry and one of his

suppliers, Tyrone Ellis, revealed many DDTO co-conspirators

that police had previously been unaware of as well as new

evidence regarding the organization’s criminal activities.

Overall, law enforcement intercepted and recorded

approximately 6,700 pertinent calls over the course of their

investigation.

In addition to these wiretaps, investigators obtained

critical information from Kareem Young, a member of the

DDTO. He eventually “flipped” and became a government

informant. Prior to cooperating with the government, Young

sold drugs for Derry, obtaining them directly from him.

Young explained the inner workings of the DDTO to

investigators, and he described the defendants’ roles in the

organization.

B. District Court Proceedings

A federal grand jury returned a fifteen-count

indictment against fifteen defendants, including the four in

5

this consolidated appeal. Thereafter, the grand jury returned a

125-count superseding indictment against nineteen

defendants, including these four defendants. The issues raised

in this appeal pertain to the following charges in that

indictment: (1) Conspiracy to Distribute and Possess with

Intent to Distribute Heroin within 1000 Feet of a Public

Housing Complex, in violation of 21 U.S.C. § 846, 21 U.S.C.

§ 841(a)(1) & (b)(1)(A), and 21 U.S.C. § 860 (drug

conspiracy count); (2) Use or Possession of a Firearm in

Furtherance of a Drug Trafficking Offense, in violation of 18

U.S.C. § 924(c)(1)(A)(iii) (firearm count); (3) Use of a

Communication Facility to Further a Drug Conspiracy, in

violation of 21 U.S.C. § 843(b) (phone count); and (4)

Possession of a Firearm by a Convicted Felon, in violation of

18 U.S.C. § 922(g)(1) (felon in possession count). While all

four defendants were charged in the first three of those

counts, only Terry Davis was charged in the fourth. The

indictment alleged that the charged conspiracy lasted “[f]rom

in or about October 2010 through in or about March 2013.”3

Given logistical hurdles arising from the number of

individuals indicted, the district court established three groups

of defendants who would be tried separately. The four

defendants here were among those joined in the first group to

be tried. All four were subsequently convicted on all counts

charged against them, except one phone count on which

Bailey was acquitted. Davis received an aggregate sentence of

240 months’ imprisonment in accordance with the applicable

mandatory minimums. Venable was sentenced to 240 months;

Bailey to 241 months; and Macon to 240 months.

Defendants now raise overlapping and individual

challenges to their convictions. They raise four principal

arguments. First, they contend that the government did not

present sufficient evidence to support the jury’s verdict.

Second, Bailey, Venable, and Macon argue that the district

court should have suppressed the evidence obtained through

the wiretaps. Third, they claim that the district court violated

Federal Rules of Evidence 404(b) and 403 when it permitted

the government to present evidence of a murder committed by

Mykal Derry’s brother, Malik Derry. Bailey and Macon also

argue that the district court violated Rule 403 when it

3

Appendix for Kareem Bailey (Bailey J.A.) at 2.

6

permitted the government to present evidence of another

drug-trafficking-related assault that DDTO members carried

out. Bailey further appeals the district court’s admission of

his prior convictions under Rules 404(b) and 403. Fourth and

finally, Venable, Bailey, and Macon claim there are three

different grounds for a mistrial that were erroneously denied.

For the reasons that follow, we hold that only one of the

defendants’ evidentiary challenges has any merit.

Nonetheless, the resulting error was harmless.4

II. SUFFICIENCY OF THE EVIDENCE CLAIM

A. The Heroin-Trafficking Conspiracy Charge

All four defendants contend that the evidence

presented at trial was insufficient to support their convictions

for membership in a heroin-trafficking conspiracy and use (or

possession) of a firearm in furtherance of that drug trafficking

conspiracy.5 To prove they were members of a drug-

trafficking conspiracy in violation of 21 U.S.C. § 846, the

government must establish: (1) a shared unity of purpose

between the alleged conspirators, (2) an intent to achieve a

common goal, and (3) an agreement to work together toward

that goal.6 We can infer such a conspiracy when evidence of

related facts and circumstances make clear that the defendants

could not have carried out their activities “‘except as the

result of a preconceived scheme or common

understanding.’”7 The government “need not prove that each

defendant knew all of the conspiracy’s details, goals, or other

participants.”8 Furthermore, the government is entitled to

prove these elements entirely through circumstantial

4

The district court had subject matter jurisdiction under 18

U.S.C. § 3231; we exercise jurisdiction pursuant to 28 U.S.C.

§ 1291.

5

They do not challenge their convictions for use of a

communication facility to further a drug conspiracy.

6

United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).

7

United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986)

(quoting United States v. Ellis, 595 F.3d 154, 160 (3d Cir.

1979)).

8

United States v. Perez, 280 F.3d 318, 343 (3d Cir. 2002)

(citing United States v. Theodoropoulos, 866 F.2d 587, 593

(3d Cir. 1989), overruled on other grounds by United States

v. Price, 13 F.3d 711, 727 (3d Cir. 1994)).

7

evidence.9 Indeed, “‘[i]t is not unusual that the government

will not have direct evidence. Knowledge is often proven by

circumstances. A case can be built against the defendant

grain-by-grain until the scale finally tips.’”10

In drug conspiracy cases, the government must prove

that the defendants were not merely engaged in “buyer-seller”

relationships with their suppliers.11 Instead, the government

must prove that the defendants were actually members of the

drug-trafficking conspiracy. We discussed the problem of

differentiating between one who merely buys drugs from a

drug conspiracy, and one who is an actual member of the

conspiracy, in United States v. Gibbs.12 Gibbs teaches that the

factors that demonstrate a defendant was part of a conspiracy

rather than in a mere buyer/seller relationship with that

conspiracy include: (1) “the length of affiliation between the

defendant and the conspiracy”; (2) “whether there is an

established method of payment”; (3) “the extent to which

transactions are standardized”; (4) “whether there is a

demonstrated level of mutual trust”; (5) whether “transactions

involved large amounts of drugs”; and (6) whether the

defendant purchased his drugs on credit.13 These factors do

not necessarily establish membership in a conspiracy as

opposed to a buyer-seller relationship, but “their presence

suggests that a defendant has full knowledge of, if not a stake

in, a conspiracy.”14 As we acknowledged in Gibbs:

[W]hen a defendant drug buyer has repeated,

familiar dealings with members of a conspiracy,

that buyer probably comprehends fully the

nature of the group with whom he is dealing, is

more likely to depend heavily on the conspiracy

as the sole source of his drugs, and is more

likely to perform drug-related acts for

9

Gibbs, 190 F.3d at 197 (citing United States v.

McGlory, 968 F.2d 309, 321 (3d Cir. 1992)).

10

United States v. Caraballo-Rodriguez, 726 F.3d 418, 431

(3d Cir. 2013) (en banc) (alteration in original) (quoting

United States v. Iafelice, 978 F.2d 92, 98 (3d Cir. 1992)).

11

Gibbs, 190 F.3d at 197.

12

Id. at 188.

13

Id. at 199.

14

Id.

8

conspiracy members in an effort to maintain his

connection to them.15

Of course, merely comprehending the nature of the group one

purchases from does not change a person who is otherwise

only a purchaser into a conspirator, and Gibbs does not hold

otherwise.16 Moreover, in Gibbs, Judge Becker also urged us

to consider “whether the buyer can be said to have a stake in

the larger conspiracy,” beyond the buyer/seller relationship.17

Our standard of review in sufficiency of the evidence

challenges is highly deferential.18 A sufficiency challenge

fails if, “‘after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.’”19 In reviewing its sufficiency, the

evidence is “view[ed] . . . as a whole,”20 not piecemeal, and

we do “‘not weigh evidence or determine the credibility of

witnesses.’”21 Furthermore, when the facts support conflicting

inferences, we “must presume—even if it does not

affirmatively appear in the record—that the trier of fact

15

Id.

16

For example, one who regularly purchases his drugs from a

drug cartel fully understands the overarching nature of the

organization from which he purchases. However, that does

not ipso facto transform that purchaser into a co-conspirator.

There is clearly a distinction between knowing one is

purchasing from a cartel and having a shared interest in the

business of that cartel.

17

Id. at 198, n.3.

18

United States v. Centeno, 793 F.3d 378, 386 (3d Cir. 2015).

Our review of sufficiency of the evidence challenges is

plenary. See United States v. Bornman, 559 F.3d 150, 152 (3d

Cir. 2009).

19

Caraballo-Rodriguez, 726 F.3d at 424-25 (emphasis in

original) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

20

Centeno, 793 F.3d at 386.

21

Id. (quoting United States v. Gambone, 314 F.3d 163, 170

(3d Cir. 2003) (internal quotation marks omitted)).

9

resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.”22

We further clarified the application of this deferential

standard to drug conspiracy cases in a relatively recent en

banc decision, United States v. Caraballo-Rodriguez.23 There,

we emphasized that in “a sufficiency of the evidence

challenge in [a] drug conspiracy case[],” we are “not to act as

a thirteenth juror.”24 We further admonished that “in this

particular area—drug conspiracy cases—it appears that we

[too frequently] examined sufficiency by looking at the

evidence under a microscope.”25 Such inspection is not

warranted: “Too often, we failed to ask whether any

reasonable juror could conclude that the defendant knew the

transaction involved drugs; instead, we reassessed the

evidence independently.”26 In closing, we stressed:

While evidence proffered at trial may be

consistent with multiple possibilities, our role as

a reviewing court is to uphold the jury verdict—

and not to usurp the role of the jury—as long as

it passes the “bare rationality” test. Reversing

the jury’s conclusion simply because another

inference is possible—or even equally

plausible—is inconsistent with the proper

inquiry for review of sufficiency of the

evidence challenges . . . . It is up to the jury—

not the district court judge or our Court—to

examine the evidence and draw inferences.27

The defendants must therefore clear a high hurdle to prevail

on their challenge to the sufficiency of the evidence.

Here, there is considerable evidence that the DDTO

was a drug trafficking organization, of which each of the

defendants was a member. Kareem Young testified that Derry

sold him and other DDTO associates bricks of heroin, some

22

McDaniel v. Brown, 558 U.S. 120, 133 (2010) (internal

quotation marks omitted).

23

726 F.3d 418 (3d Cir. 2013) (en banc).

24

Id. at 431.

25

Id.

26

Id. at 432.

27

Id.

10

of which Young paid for upon delivery and some of which he

obtained on credit. Young explained that he and other DDTO

associates stored heroin and guns inside trap houses that they

operated at the Stanley Holmes Village apartments. He also

stated that if a rival drug dealer attempted to sell heroin on

DDTO “turf,” DDTO associates would beat, rob, and/or shoot

the invader.

Regarding the four defendants here, Young first

testified that Derry provided heroin to Macon from 2011

through 2013, and Macon resold the heroin in Atlantic City

on a daily basis. Young also stated that Derry sold Macon

heroin on credit. Wiretapped phone calls between Macon and

Derry corroborate this testimony. The wiretaps also captured

a conversation between Derry and Macon in which Macon

warned Derry about police surveillance. This fact suggests

that Macon had a stake in the continued viability of Derry’s

drug operation. Similarly, police recorded Macon directing

heroin customers to Derry. This evidence was more than

sufficient to establish that Macon had an interest in the Derry

conspiracy and, thus, was a member of it.

The evidence also established Davis was a member. In

fact, Davis served as an “enforcer” for the group. Davis

carried firearms to protect DDTO associates during heroin

sales. Young testified that Derry delivered heroin to Davis for

redistribution, occasionally providing it on credit. Intercepted

conversations corroborated Young’s testimony against Davis.

The prosecution also presented other examples of Davis’s

active membership in the DDTO. These examples included

recorded conversations about an incident in which Davis

rented a hide-away room at the Trump Taj Mahal Casino for

Derry after Derry and his brother Malik murdered a member

of a rival gang. This evidence was enough to allow a

reasonable jury to conclude that Derry and Davis had a shared

interest in the success of the DDTO.

Venable’s attempt to distance himself from

membership in the DDTO fares no better. Young recounted

that Derry sold heroin to Venable in 2011 and 2012,

occasionally providing it to him on credit. Moreover, Venable

conceded in his brief that “direct proof . . . of Venable’s

membership in the conspiracy”28 came from Young. The

28

Venable Br. at 23.

11

government also corroborated Young’s testimony with

intercepted phone conversations, including one in which

Derry instructed Venable to go to the bathroom of a

McDonald’s restaurant in Atlantic City and sell heroin to a

customer there. Like Macon, Venable referred heroin

customers to Derry so that Derry could make the sale himself.

The government also presented sufficient evidence of

Bailey’s membership in the DDTO drug conspiracy.

Recorded calls revealed Bailey setting up sales for Derry.

Bailey, like Macon, also acted as a lookout for the DDTO.

Lastly, the evidence included recorded conversations between

Derry and Bailey in which the two discussed collecting

money from other DDTO associates so that they could post

bail for Davis and another DDTO co-conspirator.

This evidence establishes several important Gibbs

factors. First, as Gibbs teaches, “[a] large transaction or an

accumulation of deals suggests more trust, garnered over a

period of time, as well as a greater likelihood that the parties

have ‘put their heads together’ to figure out planning,

organization, and ways to conceal their activities.”29

The fact that Macon and Davis obtained heroin from

Derry on credit with some regularity further shows the

trusting and continuing nature of the relationship between

them. This trust is indicative of membership in a conspiracy

rather than merely purchasing from it.

A credit relationship may well reflect the kind

of trust that is referenced supra, and often

evidences the parties’ mutual stake in each

other’s transactions. By extending credit to a

buyer, the seller risks the possibility that the

buyer will be unable to resell the drugs: even if

the buyer does successfully resell the drugs, in

this generally thinly capitalized “business,” the

seller will likely have to wait until the buyer

collects the money from his resale before he can

pay the seller back for the initial purchase. In

addition, the buyer has a vested interest in the

seller’s ability to maintain a good working

relationship with his supplier, since the buyer

29

United States v. Gibbs, 190 F.3d 188, 199 (3d Cir. 1999).

12

will not profit unless the drugs continue to flow

from the seller's supplier to the seller.30

The fact that Bailey, Macon, and Davis occasionally

advanced the DDTO by serving as lookouts are also

indicative of membership in the conspiracy. We have

explained that when a defendant “acted as a lookout [while an

alleged coconspirator] conducted drug sales, [] that fact alone

may well have been enough to show the existence of a

conspiracy between” those persons.31

Accordingly, it is abundantly clear that all four of

these defendants had a stake in the DDTO organization and

actively worked to advance the goals of that organization;

these were goals from which each of these defendants shared

and benefitted. This evidence is clearly sufficient to establish

each of the defendants’ membership in the charged

conspiracy beyond a reasonable doubt, and their protestations

to the contrary are unpersuasive.32

B. The Firearm Possession Charge

The defendants further claim that the evidence was

insufficient to prove that they possessed, carried, or used

firearms in furtherance of the heroin-trafficking conspiracy.

This argument is only slightly better than their claim that the

evidence was not sufficient to establish their membership in

the DDTO conspiracy. To prove the firearms charge, the

government had to prove that:

(1) the defendant committed either the crime of

conspiracy to distribute and possess with intent

to distribute a controlled substance or the crime

of possession with intent to distribute; (2) the

defendant knowingly possessed a firearm; and

(3) the defendant knowingly possessed the

firearm in furtherance of the crime of

30

Id. at 200.

31

United States v. Pressler, 256 F.3d 144, 155 (3d Cir. 2001).

32

The fact that much of the evidence of the defendants’

participation in the conspiracy came from one co-conspirator

does not undermine our conclusion. See United States v.

Boria, 592 F.3d 476 (3d Cir. 2010).

13

conspiracy to distribute or in furtherance of the

crime of possession with intent to distribute.33

However, since the government charged a conspiracy,

it need not prove that each defendant himself personally used

a firearm in furtherance of the conspiracy. Instead, under

Pinkerton v. United States,34 each member of the charged

conspiracy is liable for the substantive crimes his co-

conspirators commit in furtherance of the conspiracy even if

he neither participates in his co-conspirators’ crimes nor has

any knowledge of them, absent the following three exceptions

to that rule.35 A defendant may not be held liable for the

offenses of his co-conspirators if: (1) “the substantive offense

committed by one of the conspirators was not in fact done in

furtherance of the conspiracy,”36 (2) the substantive offense

committed by one of the conspirators “did not fall within the

scope of the unlawful project,”37 or (3) the substantive

offense committed by one of the conspirators “could not be

reasonably foreseen as a necessary or natural consequence of

the unlawful agreement.”38

Here, the government introduced considerable

evidence of the DDTO’s profligate use of firearms to further

the common interests of the conspirators. Young testified that

the DDTO associates engaged in numerous shootings,

targeting rival drug dealers and former DDTO associates in

an effort to maintain DDTO control over the drug-trafficking

trade in the Stanley Holmes area. For example, Young

explained that Derry and another DDTO associate assaulted a

former DDTO associate named Anthony Rosario after

Rosario stopped buying heroin from Derry. After Rosario

reported the assault to the police, Derry ordered his cousin to

shoot Rosario.

The government introduced evidence that Macon,

Davis, Venable, and Bailey either committed the substantive

33

United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006).

34

328 U.S. 640 (1946).

35

United States v. Gonzalez, 918 F.2d 1129, 1135 (3d Cir.

1990) (citing Pinkerton).

36

Pinkerton, 328 U.S. at 647.

37

Id. at 647-48.

38

Id. at 648.

14

crime of possession in furtherance of a drug-trafficking

conspiracy or else met Pinkerton’s standard for co-

conspirator liability. As previously explained, “As long as [a

conspirator’s] action was within the purview of the

conspiracy, his co-conspirators are as liable for his gun as if

they had carried the firearm themselves.”39

Young told the jury that when he and Macon were

selling heroin one night in the Stanley Holmes Village,

Macon asked Young if he was “strapped” (i.e. armed), and

Young assured Macon that he was. Macon also spent time in

DDTO trap houses where firearms were openly displayed.

Young further explained that he repeatedly saw Davis

carrying guns, and that Davis was an “enforcer” for the

DDTO. Law enforcement also intercepted conversations

between Davis and another DDTO associate regarding a

shooting that a DDTO associate carried out against rival drug

dealers.

According to Young, Venable regularly carried a

loaded .22 caliber rifle with a sawed-off barrel to shoot at

rival drug dealers. The police seized a sawed-off, .22 caliber

rifle from Venable, thus corroborating Young’s testimony.

Moreover, Young testified that Venable admitted that he was

involved in a shooting on rival drug turf. The presence of a

discharged .22 caliber shell casing found at the scene of the

shooting corroborated this testimony.

Young testified that Bailey possessed “firearms at

times while he was selling drugs or engaged in the business of

selling drugs in and around” the Stanley Holmes Village and

other locations. After Bailey was arrested, Derry told Bailey

that he was glad that Bailey “wasn’t strapped” when he was

arrested, and Bailey acknowledged his ownership of a gun

(“my joint”).

39

United States v. Gonzalez, 918 F.2d 1129, 1135 (3d Cir.

1990) (stating that the evidence was sufficient to prove that a

coconspirator’s “use of his weapon was both foreseeable to . .

. [his co-conspirator] . . . and within the scope of the

conspiracy”); see United States v. Casiano, 113 F.3d 420, 427

(3d Cir. 1997) (“[T]here was sufficient evidence that Casiano

could have reasonably foreseen the use of a gun by his co-

conspirators.”); United States v. Ramos, 147 F.3d 281, 286

(3d Cir. 1998) (same).

15

This evidence is sufficient to establish actual

possession of firearms in furtherance of drug-trafficking

activity. It is also more than enough proof that each defendant

conspired to possess them for that purpose. There was also

evidence that Davis, Venable, and Bailey carried firearms

during drug sales, supporting the inference that they relied on

these firearms to enforce and protect their drug business.

Venable even appears to have used his firearm in drug-related

shootings.

Even without this direct evidence, the government

produced sufficient evidence to prove that all four defendants

knew the DDTO used guns in furtherance of the drug

conspiracy. All four were aware of numerous drug-related

DDTO shootings, saw firearms in trap houses, and knew that

the DDTO used armed, i.e. “strapped,” enforcers.

III. THE WIRETAP EVIDENCE CHALLENGE

Bailey, Macon, and Venable claim that the government

failed to establish “necessity” for its wiretaps. Thus, they

contend that the district court erred in not suppressing the

evidentiary “fruits” of those wiretaps. According to the

defendants, the investigators obtained sufficient information

through “traditional investigative techniques,” such as

controlled purchases of heroin, physical surveillance, review

of telephone records, and confidential informants. The record

is to the contrary.

The team that investigated this case used nearly every

technique in the book before requesting authorization for a

wiretap. They ultimately applied for a wiretap only when it

became clear that the less invasive techniques they had been

using were not effective. Those methods did not disclose the

full scope of the DDTO’s conspiracy. We review the district

court’s approval of the wiretap application for clear error,

while exercising plenary review over its legal

determinations.40

The statute governing the authorization of wiretaps,

Title III,41 requires the government to demonstrate necessity

when applying for wiretap authorization. More specifically,

wiretap applications must contain “a full and complete

40

United States v. Thompson, 772 F.3d 752, 758 (3d Cir.

2014).

41

18 U.S.C. § 2518.

16

statement as to whether or not other investigative procedures

have been tried and failed or why they reasonably appear to

be unlikely to succeed if tried or to be too dangerous.”42 The

purpose of the necessity requirement is “to make doubly sure

that the statutory authority be used with restraint and only

where the circumstances warrant the surreptitious interception

of wire and oral communications.”43 The Supreme Court has

emphasized that “[t]hese procedures [are] not to be routinely

employed as the initial step in criminal investigation.”44

A district court may approve a wiretap application

when the government demonstrates that “normal investigative

procedures have been tried and have failed or reasonably

appear to be unlikely to succeed if tried or to be too

dangerous.”45 We have acknowledged that “18 U.S.C. §

2518(3)(c) does not require the government to exhaust all

other investigative procedures before resorting to electronic

surveillance.”46 “The government need only lay a factual

predicate sufficient to inform the judge why other methods of

investigation are not sufficient.”47 Ultimately, we apply the

necessity requirement in a “practical and common sense

fashion.”48

42

18 U.S.C. § 2518(1)(c).

43

United States v. Giordano, 416 U.S. 505, 515 (1974).

44

Id.

45

18 U.S.C. § 2518(3)(c).

46

United States v. Williams, 124 F.3d 411, 418 (3d Cir.

1997); see also United States v. Galloway, 749 F.3d 238, 243

(4th Cir. 2014) (observing that necessity was shown where

the affidavit described “at length the steps that police officers

had taken . . . in investigating” a drug-trafficking conspiracy,

“addressing at least ten alternative investigatory procedures,”

included “physical surveillance, analyzing telephone toll

records, and affixing GPS devices”; “those methods had

failed to reveal the full scope of the organization, showing

instead that members of this organization [were] extremely

cautious in their movements and activities” (alternation in

original) (internal quotation marks omitted)).

47

Id. (internal quotation marks omitted).

48

United States v. Armocida, 515 F.2d 29, 37 (3d Cir. 1975)

(internal quotation marks omitted).

17

Here, law enforcement either exhausted the normal

investigative techniques available to them or else reasonably

concluded that such procedures were unlikely to succeed if

tried. The affidavit in support of the wiretaps lays this out in

exhaustive detail. The investigators first recruited confidential

informants who made controlled purchases of heroin from

Derry and other DDTO associates. Investigators used

physical surveillance of most of the controlled purchases of

heroin from Derry. Investigators also obtained information

from recorded prison telephones involving incarcerated

DDTO associates.

These techniques proved to be insufficient. The

confidential informants bought heroin almost exclusively

from Derry and did not “know all” of his confederates. They

also could not ascertain the DDTO’s “method(s) or source(s)

of supply, nor locations used for storage, packaging or

distribution.”49 Investigators “believed that if [Derry] was

arrested for” selling heroin, the DDTO “would continue to

distribute narcotics, and continue to engage in violence.”50

Thus, arresting Derry alone would have frustrated the goals of

the broader investigation.

Law enforcement further determined that other, less

invasive investigative techniques would also fail to reveal the

full scope of the DDTO’s operations. Continued physical

surveillance was likely to be fruitless because most of the

associates were surveillance conscious, avoiding locations

that were visible to security cameras. They were also

occasionally aware of surveillance vehicles when they were

present (some of these defendants even alerted each other to

the presence of surveillance vehicles). Investigators also

determined that searches of the targets’ trash would provide

little relevant evidence because trash at the Stanley Holmes

Village was thrown into communal dumpsters and could not

be attributed to particular tenants.

Law enforcement also decided that the execution of

search warrants would be futile because such searches would

alert DDTO associates to the existence of the investigation,

thereby leading to the concealment or destruction of evidence

before police could identify all drug stash locations.

49

Supplemental Appendix 694 (Affidavit ¶ 92).

50

Supplemental Appendix 698 (Affidavit ¶ 102).

18

Additionally, execution of search warrants “in and of

themselves, would [not] meet the goals and objectives of this

investigation” because the “[e]vidence seized would only

implicate the individual directly associated with the

respective property[] and not the entire organization.”51 And

perhaps most importantly, the investigators determined that

DDTO associates were unlikely to cooperate with law

enforcement officials due, in large part, to the threat of

retribution.

As the government explained in its affidavit, Derry

largely conducted his business over cell phones, using seven

different mobile telephones an average of 205 times per day.

In a final attempt to avoid applying for wiretap authorization,

investigators first obtained judicial approval to install pen

registers and trap-and-trace devices as well as collect global

positioning satellite information on Derry’s mobile

telephones. These devices enabled officers to track Derry’s

location and contacts without allowing them to listen to the

substance of his calls. However, police were still unable to

ascertain the identities of the people speaking to Derry on the

phone. It was therefore necessary for the government to

obtain more precise information regarding Derry’s cell phone

use.

Moreover, as the government explains in its brief, the

“value of historical telephone usage information was limited

by the fact that targets occasionally used ‘pre-paid’

telephones or ‘drop phones’―for which service providers

were not required to maintain subscriber information―or

used fictitious names to subscribe for telephone service.”52

Furthermore, although the GPS data informed police when

targets were at particular locations, investigators could not

prove they were engaged in criminal activity. Thus, over two

years into the investigation, law enforcement applied for and

received wiretap authorization. The government’s wiretap

affidavit detailed each of the investigative steps law

enforcement had previously attempted and explained with

precision why other techniques would prove fruitless.

51

Supplemental Appendix 702 (Affidavit ¶ 114).

52

Gov’t Br. at 53 (citing Supplemental Appendix 710-11

(Affidavit ¶¶ 130, 132)).

19

Far from being inadequate to justify authorization of a

wiretap, the government’s application here is a textbook

model of care and thoroughness, and the individuals who

prepared it are to be commended. With meticulous and

painstaking care, they clearly explained the government’s

need for the wiretap authorization and why, absent that

information, the government would only be able to arrest

Derry and a few other key DDTO associates. As we have

previously explained, even where “normal investigative

techniques might have been sufficient to implicate” the

conspiracy leader in drug trafficking, “such approaches” are

sometimes insufficient to determine “the scope of the

conspiracy or the nature of [the conspiracy leader’s] on-going

criminal activity.”53 Investigations are not limited “to crimes

which can be probed satisfactorily by normal methods.”54

Instead, “[i]n the proper circumstances, the instrumentalities

of Title III may be employed to discover the full extent of

crimes and conspiracies.”55

In United States v. Armocida,56 we explained that

“[a]lthough the government ha[d] actual knowledge of a

conspiracy and evidence sufficient to prosecute one of the

conspirators, it [would have been] unrealistic to require the

termination of an investigation before the entire scope of the

narcotics distribution network [was] uncovered and the

identity of its participants learned.”57 The same is true here.

The government established that a wiretap was necessary to

uncover the full scope of the DDTO’s operation, despite the

fact that law enforcement had enough evidence without it to

arrest Mykal Derry.

Moreover, as previously explained, the government

was not required to show that all other investigative methods

would have been ineffective (even though the government

appears to have made such a showing here). “It is sufficient

that the government show that other techniques are

impractical under the circumstances and that it would be

unreasonable to require pursuit of those avenues of

53

United States v. Vento, 533 F.2d 838, 850 (3d Cir. 1976).

54

Id.

55

Id.

56

515 F.2d 29 (3d Cir. 1975).

57

Id. at 38.

20

investigation.”58 As long as the wiretap affidavit is prepared

in detail, recounting the investigative methods that were

attempted and why other methods would prove ineffective, as

they were here, we have no difficulty concluding that the

district court did not abuse its discretion in determining that

the affidavit supported a finding of necessity.

IV. RULE 403 AND 404(B) CLAIMS

A. Evidence of the James Murder

The district court permitted the government to present

evidence that Mykal Derry and his brother Malik murdered a

rival heroin trafficker named Tyquinn James for selling drugs

on their turf. The evidence was admitted to prove the firearm

and drug trafficking conspiracy charges.

On February 10, 2013, Malik Derry shot Tyquinn

James at extremely close range outside a populated fast food

restaurant and liquor store in Atlantic City. A security camera

outside the restaurant partially captured the murder on video.

At trial, the district court permitted the government to present

both the video recording of this murder as well as non-video

evidence—testimony and recorded conversations—discussing

the murder. Davis, Bailey, Macon, and Venable argue that the

district court erred in admitting both the video and non-video

evidence of the James murder under Federal Rule of Evidence

403. Davis also argues that the evidence was inadmissible

under Federal Rule of Evidence 404(b).

We conclude that the district court did not err in

admitting the non-video evidence of the James murder. Given

the nature of the charged conspiracy, that evidence was more

probative than prejudicial and therefore admissible under

Rule 403. However, we are extremely troubled by the district

court’s decision to allow the surveillance video of that

shooting into evidence. The video depicted a brutal murder; it

was not necessary to establish the government’s stated

purpose in seeking its admission, and the probative value of

this video—if any—was vastly outweighed by the significant

risk of undue prejudice and emotion it most likely stimulated

in the jury. As we shall explain, the district court should not

have admitted this tape into evidence. Nevertheless, even

though we are disturbed by this error and the prosecution’s

tactic, given the plethora of evidence of guilt of each of these

58

Vento, 533 F.2d at 849.

21

defendants, we hold that this error was harmless. We address

each of these issues in turn, beginning with the non-video

evidence.

1. The Non-Video James Murder Evidence

i. Standard of Review

We generally review a district court’s evidentiary

findings for abuse of discretion.59 This standard requires us to

afford district courts “broad discretion on evidentiary rulings”

due to their “familiarity with the details” of the cases in front

of them and their “greater experience in evidentiary

matters.”60 “In order to justify reversal, a district court’s

analysis and resulting conclusion must be arbitrary or

irrational.”61 Nevertheless, when reviewing a district court’s

admission of evidence under Federal Rule of Evidence 403,

we do not afford that court the deference normally afforded

when we review for abuse of discretion if the district court

failed to engage in on-the-record balancing.

Rule 403 states: “The court may exclude relevant

evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative

evidence.”62 When determining whether evidence violates

Rule 403, district courts must balance the probative value of

the evidence against its prejudicial effect, clarifying its

reasoning on-the-record.63 This requirement not only provides

59

United States v. Schneider, 801 F.3d 186, 197 (3d Cir.

2015).

60

United States v. Finley, 726 F.3d 483, 491 (3d Cir. 2013)

(internal quotation marks omitted).

61

Schneider, 801 F.3d at 198 (internal alternations omitted)

(internal quotation marks omitted).

62

Fed. R. Evid. 403.

63

See United States v. Caldwell, 760 F.3d 267, 283-84 (3d

Cir. 2014), reh’g denied (Sept. 16, 2014); United States v.

Smith, 725 F.3d 340, 348 (3d Cir. 2013) (explaining that the

district court’s balancing must be apparent from the record);

United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992)

(“When a court engages in a Rule 403 balancing and

articulates on the record a rational explanation, we will rarely

disturb its ruling. Where, however, the court failed to perform

22

the defendants with an explanation of the district court’s

reasoning, but also enables appellate courts to understand the

district court’s logic. If a district court does not conduct this

on-the-record balancing, we either remand the case to the

district court or, where practical, undertake this balancing

ourselves.64

Here, Davis contends that the district court abused its

discretion because it failed to conduct the requisite on-the-

record balancing with respect to the video evidence of the

James murder. Although Davis does not raise this argument

with respect to the non-video evidence, we will address this

point with respect to all evidence of the James murder as it

dictates the degree of deference we must afford the district

court’s decision. We conclude that the district court

articulated sufficient reasons, on-the-record, for admitting the

non-video evidence of the James murder.

At trial, both parties briefed the Rule 403 issue with

respect to both testimonial and video evidence, and the

this analysis, or where its rationale is not apparent from the

record, there is no way to review its discretion.” (internal

citation omitted)).

64

See United States v. Cunningham, 694 F.3d 372, 388-91

(3d Cir. 2012) (holding that the district court’s “underlying

Rule 403 determination [was] not entitled to the full range of

deference that we would normally give to it on appeal,” and

then conducting our own Rule 403 analysis); United States v.

Murray, 103 F.3d 310, 318-19 (3d Cir. 1997) (“When the

record does not contain an adequate explanation of a trial

judge’s Rule 403 ruling, a remand for clarification may be

appropriate, but here we see no reason for a remand, because

we see no basis on which the admission of the evidence in

question could be sustained.”). When a district court fails to

conduct the appropriate balancing, that omission does not per

se necessitate reversal and remand. See United States v.

Eufrasio, 935 F.2d 553, 572 (3d Cir. 1991) (“Either way, the

trial court’s failure to expressly articulate a Rule 403 balance

when faced with a Rule 403 objection, would not be

reversible error per se.”). Our Court can conduct the

necessary balancing if the record provides the information

needed for that determination. See Cunningham, 694 F.3d at

388-91.

23

district court heard argument on the issues. The court then

conducted the necessary balancing with respect to the non-

video evidence. First, the district court acknowledged that the

evidence was prejudicial, but only in the way that all

probative evidence is prejudicial. The court then rejected the

defendants’ argument that the non-video evidence of the

James murder was cumulative of other documentation of the

DDTO’s drug-related violence. The court reasoned that

nothing about this evidence was unfairly prejudicial and

rejected the defendants’ Rule 403 argument. The district court

considered a number of relevant factors in conducting its on-

the-record balancing. The balancing inquiry convinced the

court that the testimonial and wiretapping evidence of the

James murder should be admitted. Accordingly, we review

that decision only for an abuse of discretion. We must

therefore determine whether “‘the district court’s action was

arbitrary, fanciful or clearly unreasonable,’ and ‘we will not

disturb a trial court’s exercise of discretion unless no

reasonable person would adopt the district court’s view.’”65

ii. Admissibility of the Non-Video Evidence under Rule 403

We now turn to the merits of the district court’s Rule

403 ruling as to the non-video evidence of the James murder.

As previously stated, under Rule 403, a court may “exclude

relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting

cumulative evidence.”66 “When weighing the Rule 403

factors, courts ‘must appraise the genuine need for the

challenged evidence and balance that necessity against the

65

United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)

(internal alterations omitted) (quoting Ansell v. Green Acres

Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003)).

66

Fed. R. Evid. 403; see United States v. Universal Rehab.

Servs. (PA), Inc., 205 F.3d 657, 664 (3d Cir. 2000) (en banc)

(“As the text of [Rule 403] indicates, evidence that is

otherwise relevant and admissible may only be excluded if

the probative value of the evidence is substantially

outweighed by its prejudicial effect.”).

24

risk of prejudice to the defendant.’”67 “Evidence cannot be

excluded under Rule 403 merely because its unfairly

prejudicial effect is greater than its probative value. Rather,

evidence can be kept out only if its unfairly prejudicial effect

‘substantially outweigh[s]’ its probative value.”68 Moreover,

when evidence is highly probative, “even a large risk of

unfair prejudice may be tolerable.”69 The converse is also

true. When the probative value of evidence is tenuous, a

relatively minor risk of substantial undue prejudice should

counsel against admitting it.

The evidence of the James murder was highly

probative to the firearms charge. As previously explained, the

government had to prove either that each defendant conspired

to traffic heroin and knowingly possessed firearms in

furtherance of that conspiracy70 or that their co-conspirators’

use of firearms in furtherance of the conspiracy was

foreseeable under Pinkerton.71 At trial, the government

argued that Derry and his brother killed James to eliminate

competition with their drug-trafficking conspiracy. The

government also proved that some of these defendants helped

Derry hide from the authorities after the shooting.

Accordingly, evidence of this murder—and the defendants’

knowledge of it—was very relevant to establishing whether

use or possession of firearms in furtherance of the DDTO was

reasonably foreseeable. Testimony about the murder was also

highly probative of the defendants’ guilt of the charged

firearm offense.72 Indeed, counsel for one of the defendants

even conceded this fact in his brief.

67

United States v. Claxton, 766 F.3d 280, 302 (3d Cir. 2014)

(quoting Gov’t of Virgin Islands v. Archibald, 987 F.2d 180,

186 (3d Cir. 1993) (internal quotation marks omitted)).

68

United States v. Cross, 308 F.3d 308, 323 (3d Cir. 2002)

(quoting Fed. R. Evid. 403); see Claxton, 766 F.3d at 302

(quoting Cross).

69

Cross, 308 F.3d at 323; see Claxton, 766 F.3d at 302

(quoting Cross).

70

United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006).

71

Pinkerton v. United States, 328 U.S. 640, 646-48 (1946).

72

See United States v. Jones, 566 F.3d 353, 365 n.5 (3d Cir.

2009) (holding that evidence of gang related shootings was

relevant to the charged conspiracy because they “tended to

25

The defendants nonetheless argue that the danger of

unfair prejudice associated with this evidence outweighed its

probative value. They point out that they offered a trial

stipulation that DDTO associates murdered James. However,

we have repeatedly acknowledged the Supreme Court’s

canonical directive in Old Chief v. United States.73 There, the

Court explained that the government is “entitled to prove its

case free from any defendant’s option to stipulate the

evidence away.”74 “That rule ‘rests on good sense’ because

‘[a] syllogism is not a story, and a naked proposition in a

courtroom may be no match for the robust evidence that

would be used to prove it.’”75

Moreover, if the government uses testimony or

other tangible evidence to describe a series of

events, but then interrupts that pattern by

“announcing a stipulation or admission, the

effect may be like saying, ‘never mind what’s

behind the door,’ and jurors may well wonder

what they are being kept from knowing,” or

whether the government is “responsible for

cloaking something.”76

Thus, the government was entitled to present evidence of the

James murder to the jury through testimony, rather than by

stipulation.

Defendants also argue that evidence of the James

murder was cumulative because evidence pertaining to other

DDTO shootings was presented at trial. But Old Chief also

teaches that “the mere fact that two pieces of evidence might

show the gang’s hierarchal structure and expectations that

lower-ranking members, . . . carry out the violent acts of

retaliation, including murder, against other gangs to ensure

one’s position within the Bloods, solidify its violent

reputation, and protect its drug-distribution territory from

rival gangs, among other things”).

73

519 U.S. 172, 189 (1997).

74

Id.; see United States v. Cunningham, 694 F.3d 372, 387-88

(3d Cir. 2012).

75

Cunningham, 694 F.3d at 387 (quoting Old Chief, 519 U.S.

at 189).

76

Id. at 388 (quoting Old Chief, 519 U.S. at 189).

26

go to the same point would not . . . necessarily mean that only

one of them might come in.”77 The fact that the government

placed into evidence other examples of the DDTO’s violent

offenses is certainly relevant to the Rule 403 balancing.

However, such evidentiary submissions did not automatically

foreclose the prosecution from eliciting testimony about the

James murder. To counsel’s credit, Davis actually concedes

this point.

The government stipulated to the fact that none of the

defendants here actually murdered or plotted to murder

James. Indeed, the government took pains to prove that Derry

and his brother committed this murder. As we explained in

United States v. Jones,78 such a stipulation mitigates the

danger of unfair prejudice. In Jones, the government tried a

gang member for conspiracy to commit murder and attempted

murder. There, as here, the government introduced evidence

that other gang members—not on trial—committed violent

acts, including shootings.79 The defendant argued that

evidence of other gang members’ violent crimes was more

prejudicial than probative.80 In rejecting the defendant’s

claim, we emphasized that there had not been any suggestion

that the defendant had actually committed these crimes.81 The

same is true here. Not only was there no suggestion that any

of these defendants were implicated in the James murder, but

also there was a stipulation to the contrary. Accordingly, we

cannot conclude that the district court abused its discretion in

admitting the testimonial evidence of the James murder

pursuant to Rule 403.

2. The Video Evidence of the James Murder

i. Standard of Review

In contrast to its treatment of the non-video evidence,

the district court failed to conduct the requisite Rule 403 on-

the-record balancing with respect to the video of the James

murder. Had it done so, it is difficult to see how it could have

concluded that the probative value of this video outweighed

its prejudicial impact.

77

Old Chief, 519 U.S. at 183.

78

566 F.3d 353, 363-65 (3d Cir. 2009).

79

Id. at 364-65.

80

Id.

81

Id. at 365.

27

The extent of the district court’s balancing regarding

this piece of evidence was an off-handed and rather casual

remark that the video of James being shot in the head at point

blank range “wasn’t very graphic.”82 With that comment, the

district court concluded that the video evidence would be

admitted. For reasons known only to the court, the judge

added that the admission of this evidence would give the

defendants “an appeal issue.”83 The court was right.

We have stated numerous times that a district court

must provide a statement of reasons, on-the-record,

explaining why it is admitting evidence over a Rule 403

objection. In United States v. Caldwell,84 we explained that

district courts must engage in “more than a bare recitation of

Rule 403.”85 In Caldwell, the district court admitted evidence

under Rule 403 after simply stating that the evidence in

question was “more probative than prejudicial,” and

accordingly its “probative value outweighs any prejudicial

effect.”86 As we explained there, such a mantra-like recitation

of the rule is no substitute for a specific explanation of why

the evidence is admissible. “[W]e cannot infer such a

‘rational explanation’ where the court merely recites the text

of the rule.”87

Here, the district court failed to discuss the probative

value of this evidence or even acknowledge the video’s

potential for prejudice. Instead, the district court merely

82

It may be that what is “graphic” is in the eye and furtive

imagination of the beholder. This video was in black and

white, and the resolution did not approach a high definition

color video. However, an image of a person being gunned

down on a sidewalk does not have to be shot in high

definition, 3D, or virtual reality to be graphic. The absence of

color and blood only slightly mitigates the gruesome nature of

a life being instantly snuffed out on the sidewalk.

83

“Why don’t you let it in so you have an appeal issue[?]”

Bailey J.A. 2083.

84

760 F.3d 267, 284 (3d Cir. 2014), reh’g denied (Sept. 16,

2014).

85

Id.

86

Id. (quoting the district court below).

87

Id. (quoting United States v. Sampson, 980 F.2d 883, 889

(3d Cir. 1992)).

28

recited the text of Rule 403 and concluded that the evidence

was admissible—exactly what Caldwell prohibits. Because

the district court’s “rationale is not apparent from the record,”

we have “no way to review its discretion.”88 Therefore, we

will not afford the district court’s decision the deference of

abuse of discretion review.

ii. Admissibility of the Video Evidence under Rule 403

In contrast to the non-video evidence, it is clear that

the district court should not have admitted the video of the

James murder. This video had a substantially greater risk of

unfair prejudice than the testimonial and wiretap evidence

because it graphically depicts what can only be described as a

cold-blooded murder. The video shows James standing in

front of a populated restaurant as Malik Derry rides up on a

bicycle, draws his gun, and shoots James in the head at point

blank range. Malik then casually rides away as James

crumples and collapses to the ground. A child leaves the

restaurant, staring at James’ body, as another passerby

appears to call the police. Although no blood is visible in the

video, it is nonetheless highly disturbing. As the government

repeatedly emphasized in oral argument, the video depicts a

ruthless murder, carried out by someone with no regard for

human life. It is difficult to understand how the emotional

impact of this video would not unfairly prejudice the jury

against members of the DDTO.

Nonetheless, as we just explained, we will not disturb

the district court’s determination unless the danger of unfair

prejudice substantially outweighs the probative value of

evidence. We have little trouble concluding that it does. The

government introduced abundant evidence to prove the James

murder and its relationship to the charged drug conspiracy via

recorded telephone conversations and testimony at trial. This

video was not merely cumulative, it was a graphic depiction

of an event that had already been thoroughly proven. This

court89 and other circuit courts90 have clarified that probative

88

Sampson, 980 F.2d at 889.

89

See Cunningham, 694 F.3d at 389-91.

90

See United States v. Wiggan, 700 F.3d 1204, 1214 (9th Cir.

2012) (excluding evidence under Rule 403 where much of

that evidence “was available in other forms—by alternative

29

value is “informed by the availability of alternative means to

present similar evidence.”91 In Old Chief, the Supreme Court

advised that the “Rule 403 ‘probative value’ of an item of

evidence . . . may be calculated by comparing evidentiary

alternatives.”92 As the Seventh and Ninth Circuits have

recognized, “[t]here may be cases where the probative value

of the evidence is so minimal that it will be obvious to the

court that the potential prejudice to the defendant

substantially outweighs any probative value the evidence

might have.”93 This appeal presents such a case. The

government had alternate, less prejudicial ways of presenting

the James murder. This other evidence substantially reduced

the probative value of the James video.

We explained this concept in United States v.

Cunningham.94 That case involved the admission of

cumulative evidence in the form of videos. The videos at

issue depicted pre-pubescent children being bound, raped, and

violently assaulted.95 The district court admitted two videos

composed of seven shorter clips as proof of the child

pornography charges, holding that these videos were more

means—without risking the dangers of unfairness that use of

a grand juror’s testimony would present”); United States v.

Awadallah, 436 F.3d 125, 132 (2d Cir. 2006) (noting that

probative value is “informed by the availability of alternative

means to present similar evidence”); Gross v. Black & Decker

(U.S.), Inc., 695 F.2d 858, 863 (5th Cir. 1983) (explaining

that a factor to be taken into consideration in measuring

admissibility of potentially prejudicial evidence is whether

the same fact could have been proven by other evidence).

91

Awadallah, 436 F.3d at 132.

92

Old Chief v. United States, 519 U.S. 172, 184 (1997).

93

United States v. Loughry, 660 F.3d 965, 971 (7th Cir. 2011)

(citing United States v. Gonzalez–Flores, 418 F.3d 1093,

1098 (9th Cir. 2005) (“Where the evidence is of very slight (if

any) probative value, it’s an abuse of discretion to admit it if

there’s even a modest likelihood of unfair prejudice or a small

risk of misleading the jury.” (internal quotation marks

omitted))).

94

694 F.3d 372 (3d Cir. 2012).

95

Id. at 381-82, 390.

30

probative than prejudicial under Rule 403.96 Critically, the

district court admitted these videos despite the availability of

alternative means to prove the charged offense, including

“witness testimony, still images, shorter video clips, [his]

proffered stipulations, and/or the actual stipulations.”97 In

reversing, we explained:

Even though the two sets of videos were

probative, [] the law of diminishing marginal

returns still operates. The probative value of

each clip was reduced by the existence of the

clips before it. . . . As a result, after one excerpt

from each video was displayed, the probative

value of the remaining excerpts became

diminished because knowledge . . . had already

been established . . . by the prior video excerpts.

Thus, any of the three excerpts from the first

video would have diminished probative value if

one or two of the other video excerpts from the

first video had already been shown. Likewise,

any of the four excerpts from the second video

would have diminished probative value if one

or two of the other video excerpts from the

second video had already been shown. 98

We held that the video excerpts should have been excluded

because their “aggregate risk of unfair prejudice was

tremendous” while their probative value was low given the

availability of other evidence.99 Although “a district court ‘is

not required to scrub the trial clean of all evidence that may

have an emotional impact,’”100 Cunningham nonetheless

stands for the principle that this emotional impact outweighs

the probative value of evidence that is entirely redundant.

“[T]he more video excerpts were shown, the more it became a

96

Id. at 380.

97

Id. at 387 (internal quotation marks omitted).

98

Id. at 389-90.

99

Id. at 390.

100

Id. at 391 (quoting United States v. Ganoe, 538 F.3d 1117,

1124 (9th Cir. 2008)).

31

needless presentation of unfairly prejudicial and cumulative

evidence.”101

Here, the James video was entirely redundant. Its only

value lay in its emotional impact.102 The video had no

probative value apart from its capacity to prejudice the jury

against the defendants. When asked at oral argument what the

value of the video was apart from its prejudicial shock value,

the government repeatedly responded that the value of the

video was its shock value:

The Court: How does the fact that you see the

guy get it in the head and drop like a rock tell

you it’s this conspiracy?

The Government: Well it’s this conspiracy

because, there is other evidence that shows that

it’s this conspiracy.

The Court: Precisely. . . . Why did you need

the video? What did the video get you except

for the emotional wallop of seeing a guy go

down with a bullet going through his head?

The Government: What the video got, your

honor, is it showed how the murder was

committed in a way that no other evidence did.

It shows that it was committed brazenly, when

other people were standing around in a public

area. . . . Malik Derry rides up and brazenly

guns him down.103

In other words, the government argued that the video

allowed it to elicit the emotion that Rule 403 is designed to

prevent. As in Cunningham, “[w]e disagree with the

government’s contention . . . that [the] video [] needed to be

shown to ‘fully appreciate the nature of [the] crimes.’”104

Given the availability of other evidence of the exact same

101

Id.

102

We, of course, are not suggesting that the video would

have been properly admissible had the government refrained

from introducing the recorded conversations about the murder

or soliciting testimony about it from witnesses so that it could

argue for admission of the more graphic video.

103

Oral Argument at 33:00 minutes.

104

Cunningham, 694 F.3d at 391.

32

crime, the government did not need the James video to prove

the firearm or conspiracy charges.

It is hard to understand how the district court could

have concluded that the relatively insignificant probative

value of that video was not outweighed by its substantial

prejudicial effect. Although the Supreme Court’s proscription

in United States v. Berger105 is oft repeated, it seems all too

often to resemble the falling tree that no one hears. In Berger,

the Court unequivocally stated: “[The prosecutor] is in a

peculiar and very definite sense the servant of the law. . . . He

may prosecute with earnestness and vigor—indeed, he should

do so. But, while he may strike hard blows, he is not at liberty

to strike foul ones.”106 In other words, although ours is an

adversarial system, prosecutors should never allow their

overarching objective to be victory. “The United States

Attorney is the representative not of an ordinary party to a

controversy, but of a sovereignty . . . whose interest . . . in a

criminal prosecution is not that it shall win a case, but that

justice shall be done.”107 As the Supreme Court has warned,

the integrity of the criminal justice system is jeopardized

when prosecutors adopt tactics which are governed by the

sadly mistaken and dangerous principle that victory is the

primary objective of a criminal prosecution.

iii. Harmless Error Review

Our conclusion that the district court erred in admitting

the James video does not end our inquiry: we must still

review to see if the error was harmless. An evidentiary error

is harmless if “it is highly probable that the error did not

contribute to the judgment,”108 which “requires that the court

possess a sure conviction that the error did not prejudice the

defendant.”109

Here, we find that the district court’s erroneous

admission of the James video was harmless. As previously

described, the government presented abundant evidence of

105

295 U.S. 78, 88 (1935).

106

Id.

107

Id.

108

U.S. v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en

banc) (internal quotation marks omitted).

109

Id. at 1265 (internal quotation marks omitted).

33

the drug-trafficking conspiracy, the firearm charge, and the

defendants’ liability for each of these counts.110 Therefore, it

is “highly probable that the error did not contribute to the

judgment.”111

In concluding that this error was harmless under the

circumstances here, we caution that the doctrine of harmless

error is not a license to engage in whatever prejudicial

practices an attorney might feel he or she can get away with

because the harmless error analysis will inoculate the end

result against reversal on appeal.112

3. Rule 404(b) Analysis

Davis alone argues that evidence of the James murder

was extrinsic to the charged crimes and therefore subject to

Federal Rule of Evidence 404(b).113 Rule 404(b) provides that

“[e]vidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the

character.”114 Davis contends that the evidence of the James

110

Ironically, the video could easily have been excluded

under Rule 403 because it was so redundant given the other

evidence of the James murder.

111

Zehrbach, 47 F.3d at 1265.

112

Chief Judge McKee notes that he will begin naming

attorneys who engage in such tactics in his opinions in order

to deter such conduct. He hopes that this practice will stress

that harmless error review is not an invitation to resort to

unduly prejudicial tactics merely because the evidence is

strong enough to obtain a conviction that will likely be

immunized against reversal by the harmless error doctrine. He

invites his colleagues to do the same.

113

The James murder evidence is intrinsic to the conspiracy

and firearm charges. See infra Part IV.c.2. The murder of a

rival drug dealer who was encroaching on the DDTO’s turf

directly proves the charged crimes of drug-trafficking

conspiracy and use of a firearm in furtherance of that

conspiracy. However, we need not reach this issue. Even if

the murder evidence was extrinsic, Rule 404(b) only reaches

the bad acts of a defendant himself—not the bad acts of

others.

114

Fed. R. Evid. 404(b).

34

murder should have been excluded under Rule 404(b).

However, Rule 404(b) only applies to evidence of a

defendant’s other bad acts or crimes, not those of third

parties. In Huddleston v. United States,115 the Supreme Court

explained, “[i]n the Rule 404(b) context, similar act evidence

is relevant only if the jury can reasonably conclude that the

act occurred and that the defendant was the actor.”116 The

government stipulated that Davis did not commit the James

murder. Accordingly, Rule 404(b) simply does not apply. 117

B. The Rosario Assault

In addition to the evidence of the James murder, the

government presented evidence that DDTO associates

assaulted a former member of the organization named

Anthony Rosario. Rosario was a trafficker who obtained

heroin from Mykal Derry until they had a falling out. When

Rosario stopped buying heroin from Derry, Derry and another

DDTO associate kidnapped Rosario, stole his car, and

assaulted him. This assault occurred on October 30, 2010.

When Rosario and his mother reported the kidnapping and

assault to the police, Derry had his cousin, Kevin

Washington, shoot Rosario on April 17, 2011, paralyzing

him. The district court permitted the government to present

evidence of this assault at trial over the appellants’ Rule 403

objection.

115

485 U.S. 681, 689 (1988).

116

Id. (emphasis added).

117

See id.; see also United States v. Brady, 26 F.3d 282, 287

(2d Cir. 1994) (“Neither Montano, Brady nor their co-

defendants committed any of the murders testified about at

their trial. The record contains no indication that the

government ever attempted to make such an implication, nor

that the court permitted it to be made. . . . Therefore, Rule

404(b) is inapplicable to the evidence presented in this

case.”); United States v. Diaz, 878 F.2d 608, 616 (2d Cir.

1989) (“In this conspiracy case, evidence of crimes, wrongs

or acts by coconspirators is admissible, and such proof

ordinarily does not raise any Rule 404(b) question.” (internal

citation omitted)); United States v. Bates, 600 F.2d 505, 509

(5th Cir. 1979) (same).

35

On appeal, Bailey alone continues to contest the

admission of this evidence.118 We conclude that the evidence

was properly admitted. It was probative of the conspiracy and

firearm charges, was not excessively cumulative, and was not

unfairly prejudicial to the defendants. As the government

explained in its closing argument, “evidence that the DDTO

would violently protect its turf against interlopers such as

Rosario strongly supported the government theory that,

because these four defendants were selling heroin in [the

Stanley Holmes Village], they were not mere ‘independent

buyers’ from Derry.”119

The Rosario evidence was particularly probative

because of the timing of the assault. The Rosario assaults

occurred on October 30, 2010 and April 17, 2011, earlier in

the conspiracy than evidence of the other violent acts DDTO

associates committed. Thus, “those assaults [] had a longer

time to influence the thinking of others who might consider

opposing the DDTO.”120 Finally, the government conceded

that none of the defendants were involved in assaulting

Rosario. That reduced any potential unfair prejudice.121

Accordingly, we conclude that the district court did not abuse

its discretion in admitting evidence of this assault.

118

Bailey does not object to the district court’s on-the-record

balancing with respect to the Rosario evidence. The district

court included its Rule 403 determination for the Rosario

evidence together with the non-video James murder evidence.

And, as previously explained, the district court’s on-the-

record balancing with respect to this point was sufficient to

merit deference. Therefore, we review the district court’s

admission of this evidence for abuse of discretion. “The

admission of evidence is an abuse of discretion if the district

court’s action was arbitrary, fanciful or clearly unreasonable,

and we will not disturb a trial court’s exercise of discretion

unless no reasonable person would adopt the district court’s

view.” United States v. Starnes, 583 F.3d 196, 214 (3d Cir.

2009) (internal alterations omitted) (internal quotation marks

omitted).

119

Gov’t Br. at 78.

120

Id.

121

See United States v. Jones, 566 F.3d 353, 365 (3d Cir.

2009).

36

C. Admission of Bailey’s Past Conviction under Rule 404(b)

Just weeks before the official “start” of the charged

conspiracy, on September 4, 2010, Bailey was arrested with a

.22 caliber semiautomatic handgun, loaded with five rounds

of ammunition. He also had 20 grams of cocaine and $867 in

cash in his possession. The government charged Bailey with

unlawful possession of a handgun and unlawful possession of

cocaine with the intent to distribute within 500 feet of a

public housing complex (i.e., the Stanley Homes Village).

Bailey plead guilty to both charges in juvenile court.

At trial, the district court permitted the government to

introduce evidence of this arrest and conviction. The parties

agreed to a stipulation that Bailey’s firearm was operable.

The parties further agreed that certain exhibits related to this

incident—the firearm, ammunition, and a series of photos

taken at the scene of the arrest—would be admitted in

evidence. The district court admitted this evidence as being

intrinsic to the charged conspiracy and, in the alternative, as

an admissible prior crime under Federal Rule of Evidence

404(b). That rule allows evidence of uncharged past crimes to

be admitted if it is not used to establish a defendant’s criminal

propensity. Under the rule, such evidence “may be admissible

for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.”122 Both at trial and now on

appeal, Bailey challenges the admission of this evidence.

Bailey argues that evidence was not intrinsic to the charged

crimes and not admissible evidence of uncharged conduct

under Rule 404(b). He also contends this evidence should

have been excluded under Rule 403.

1. Standard of Review

As previously explained, we generally review district

courts’ evidentiary rulings for abuse of discretion.123

However, our review of whether evidence falls within the

scope of Rule 404(b) is plenary.124 Once we determine that

evidence falls within the scope of Rule 404(b), we review the

122

Fed. R. Evid. 404(b).

123

See United States v. Green, 617 F.3d 233, 239 (3d Cir.

2010).

124

See id.

37

district court’s decision to admit the evidence for abuse of

discretion. The “admission of evidence is an abuse of

discretion if the district court’s action was arbitrary, fanciful

or clearly unreasonable.”125 We “will not disturb a trial

court’s exercise of discretion unless no reasonable person

would adopt the district court’s view.”126 As is true with

decisions under Rule 403, district courts are not entitled to

this deferential standard of review when they fail to articulate

non-propensity reasons for the admission of the contested

evidence on-the-record.127 If the court admits evidence of

uncharged acts, the district court must “articulate, with

precision, a chain of inferences that does not contain a

propensity link.”128 And, “[o]f course, ‘a mere recitation of

the purposes in Rule 404(b)(2) is insufficient.’”129 When

confronted with a proffer under Rule 404(b), a district court

should “require the prosecution to explain exactly how the

proffered evidence should work in the mind of a juror to

establish the fact the government claims to be trying to

prove.”130

Here, the district court did articulate a chain of

inferences that did not include propensity. At trial, Bailey

argued that he should not be liable for the firearm charge

because he did not have any knowledge that other DDTO

members would carry guns, use guns, or discharge guns.

Therefore, his knowledge was critical to the government’s

125

United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)

(internal alterations omitted) (internal quotation marks

omitted).

126

Id.

127

See United States v. Brown, 765 F.3d 278, 294 (3d Cir.

2014); United States v. Caldwell, 760 F.3d 267, 277 (3d Cir.

2014), reh’g denied (Sept. 16, 2014); Unites States v.

Sampson, 980 F.2d 883, 888 (3d Cir. 1992).

128

Caldwell, 760 F.3d at 277.

129

Brown, 765 F.3d at 294 (quoting United States v. Davis,

726 F.3d 434, 442 (3d Cir. 2013)) and citing Christopher B.

Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28, at

730 (“[I]t is lamentably common to see recitations of laundry

lists of permissive uses, with little analysis or attention to the

particulars.”)).

130

Id.

38

case and conversely, his defense. The district court realized

this and offered the following explanation of how Bailey’s

past arrest shows something other than his mere propensity to

carry weapons:

[I]f three weeks . . . before the start of . . . the

conspiracy, he is arrested with drugs . . . with

intent to distribute, and he’s carrying a gun,

that’s proof of his knowledge that in engaging

in a drug conspiracy or drug transactions, that

other members of the conspiracy will use guns

in connection with the possession and

distribution[;] . . . knowledge that it’s part of the

warp and woof of the conspiracy that guns will

be used to carry out the purposes of the

conspiracy, which might be protection from

those who would rob them of money, keeping

out competition in the area where they operate,

battling – forestalling apprehension, should they

be confronted by the police. . . . [I]n this case, I

think the knowledge prong is very important in

that . . . the prosecution can argue to the jury

that Mr. Bailey knew full well that in the drug

business, particularly in that very area of

Atlantic City, involved the possession of

weapons, you know, for the sole reasons I just

articulated a minute ago.131

As the district court explained, Bailey’s conviction tends to

demonstrate his knowledge that the drug business in this area

of Atlantic City was a particularly violent enterprise; one

where drug dealers were frequently armed. This is a valid,

non-propensity reason to admit Bailey’s past conviction.

2. Admissibility of Bailey’s Past Conviction Evidence under

Rule 404(b)

Bailey argues that, contrary to the district court’s

ruling, the evidence of his past conviction was not intrinsic. If

the conviction evidence is intrinsic to the charged crimes,

then we need not conduct the 404(b) analysis.132 Only

131

Bailey J.A. 2228-29 (emphasis added).

132

United States v. Green, 617 F.3d 233, 245 (3d Cir. 2010).

39

extrinsic evidence is subject to Rule 404(b): intrinsic

evidence does not constitute a prior bad act at all; instead, it

directly proves the charged crime. In United States v.

Green,133 we examined the difference between intrinsic and

extrinsic evidence at length. There, we clarified:

[W]e will reserve the “intrinsic” label for two

narrow categories of evidence. First, evidence is

intrinsic if it directly proves the charged

offense. This gives effect to Rule 404(b)’s

applicability only to evidence of other crimes,

wrongs, or acts. If uncharged misconduct

directly proves the charged offense, it is not

evidence of some “other” crime. Second,

uncharged acts performed contemporaneously

with the charged crime may be termed intrinsic

if they facilitate the commission of the charged

crime. But all else must be analyzed under Rule

404(b).134

The Bailey conviction fails to meet either definition of

intrinsic evidence. First, Bailey’s prior arrest and conviction

did not “directly prove” the charged offense. Bailey was

arrested a month before the conspiracy even began. Bailey’s

conviction could not directly prove Bailey’s role in a

conspiracy that had not yet even begun.135 In addition,

Bailey’s arrest was not contemporaneous with the charged

crime. Although proof of conspiracies is not limited to the

charged start and end dates, the indictment’s temporal

parameters usually delineate the boundary between intrinsic

and extrinsic evidence. Evidence outside the temporal bounds

of the indicted conspiracy may still be admissible, if it

satisfies the restrictions of Rule 404(b).

133

Id.

134

Id. at 248-49 (emphasis in original) (internal quotation

marks and citations omitted).

135

See United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir.

2000) (holding that evidence of an earlier-in-time crime that

was nearly identical to and factually connected to a charge in

the indictment could not be considered intrinsic evidence of

the crime charged). This Court cited Bowie approvingly in

United States v. Green, 617 F.3d 233, 245 (3d Cir. 2010).

40

Because Bailey’s past conviction was not intrinsic to

the charged crimes, it should only have been admitted if

consistent with Rule 404(b)’s requirements. To be admissible

under Rule 404(b), evidence of uncharged crimes or bad acts

must: (1) have a proper purpose under Rule 404(b); (2) it

must be relevant under Rule 402; (3) its probative value must

outweigh its prejudicial effect under Rule 403; and (4) if the

defendant requests it, the court must instruct the jury to

consider the evidence only for the limited purpose for which

it is admitted.136 Here, the second137 and fourth138

requirements are undisputedly met. Accordingly, we only

need to consider whether evidence of Bailey’s conviction had

a proper evidentiary purpose and satisfied Rule 403.

136

See Huddleston v. United States, 485 U.S. 681, 691-92

(1988); see also United States v. Caldwell, 760 F.3d 267,

276-77 (3d Cir. 2014), reh’g denied (Sept. 16, 2014).

137

Evidence is relevant if “it has any tendency to make a fact

more or less probable than it would be without the evidence.”

Fed. R. Evid. 401. That definition is “very broad.” Gibson v.

Mayor & Council of Wilmington, 355 F.3d 215, 232 (3d Cir.

2004). Here, the fact that Bailey possessed cocaine with the

intent to distribute while in possession of a firearm in the

Stanley Holmes Village tends to show his awareness of

firearm use during drug trafficking in that area.

138

The district court instructed the jury that Bailey’s prior

arrest and conviction “was admitted only for a limited

purpose, that is, as evidence of Kareem Bailey’s knowledge

or the reasonable foreseeability to Kareem Bailey of the use,

carrying and/or possession of firearms in furtherance of drug

trafficking.” Bailey J.A. 3516. The court specifically told the

jury that it could “not consider the evidence that these other

acts as a substitute for proof that he committed any of the

crimes for which he is charged in this case. You may not

consider this evidence as proof that Kareem Bailey has had—

has a bad character or any propensity to commit crimes.

Specifically, you may not use this evidence to conclude that

Kareem Bailey may have committed the other acts, he must

have also committed the acts charged in the indictment.”

Bailey J.A. 3518-19. The district court also gave a similar

instruction in the final charge to the jury.

41

The government claims that Bailey’s past conviction

had a proper purpose because it tends to demonstrate that

Bailey knew drug dealers in the Atlantic City area—

specifically the Stanley Holmes Village—frequently used

firearms in the course of their trafficking activities. We agree.

The circumstances here are quite similar to those we

considered in United States v. Boone.139 There, a defendant

was charged with numerous offenses including conspiracy to

distribute cocaine.140 At trial, he argued that he was merely an

ignorant “go-fer” without any knowledge of the contents of

the bags that he admitted delivering.141 The trial court allowed

the government to introduce evidence of Boone’s two prior

convictions for cocaine distribution to rebut his “go-fer”

defense.142 We affirmed, noting that the evidence of his prior

convictions was “admitted to show that Boone was familiar

with drug-trafficking practices.”143 As we explained, Boone’s

familiarity with drug trafficking practices and his ability to

recognize cocaine and its packaging were relevant to the

question of whether he knew what he was doing when he

delivered bags of cocaine to certain people.144

Like Boone, Bailey contests his knowledge of drug-

trafficking practices in Atlantic City. And, as in Boone, the

government seeks to rely on Bailey’s past conviction to prove

he did possess that knowledge. This chain of logic does not

rely on improper propensity inferences. The temporal and

geographic proximity of Bailey’s past conviction to the

charged crime tends to show that Bailey knew drug traffickers

in this area possessed firearms in the course of their drug

trafficking.

3. Admissibility of Bailey’s Past Conviction under

Rule 403

Finally, we must assess whether the danger of unfair

prejudice associated with the evidence of Bailey’s past

conviction substantially outweighed its probative value.

Bailey has not contested the district court’s on-the-record

139

279 F.3d 163 (3d Cir. 2002).

140

Boone, 279 F.3d at 171.

141

Id. at 187.

142

Id.

143

Id.

144

Id.

42

balancing with respect to this issue, and we agree that it was

sufficient. The district court discussed the probative value of

Bailey’s past conviction while still acknowledging its

potential for unfair prejudice. Therefore, we review the

district court’s Rule 403 decision regarding Bailey’s past

conviction for abuse of discretion.145

The risk of unfair prejudice inherent in the evidence of

Bailey’s past conviction is obvious. It would have been

difficult for the jurors to hear this evidence and not make the

impermissible propensity inference. “Although the

government will hardly admit it, the reasons proffered to

admit prior bad act evidence may often be potemkin village,

because the motive, we suspect, is often mixed between an

urge to show some other consequential fact as well as to

impugn the defendant’s character.”146

Although this potential for unfair prejudice is

significant, so too was the probative value of this evidence.

As the district court recognized, this past conviction was

directly relevant to Bailey’s knowledge that drug dealers at

the Stanley Holmes Village used firearms. Bailey’s arrest one

month prior to the charged conspiracy at the same location as

the DDTO’s trafficking activity is compelling evidence of his

knowledge. Without this past conviction, the government’s

case for Bailey’s Pinkerton liability was significantly weaker.

As previously discussed, the only other evidence of Bailey’s

culpability on the firearm charge was 1) testimony from

Young that Bailey possessed “firearms at times while he was

selling drugs or engaged in the business of selling drugs in

and around” the Stanley Holmes Village and other

locations,147 and 2) evidence that after Bailey was arrested,

145

See United States v. Sampson, 980 F.2d 883, 889 (3d Cir.

1992) (“When a court engages in a Rule 403 balancing and

articulates on the record a rational explanation, we will rarely

disturb its ruling. Where, however, the court failed to perform

this analysis, or where its rationale is not apparent from the

record, there is no way to review its discretion.” (internal

citation omitted)).

146

Id. at 886.

147

Bailey J.A. 2352.

43

Derry told Bailey on a phone call that he was glad that Bailey

“wasn’t strapped” (armed) when he was arrested.148

Accordingly, we cannot say that the district court’s

analysis and resulting conclusion regarding Bailey’s past

conviction was “arbitrary or irrational.”149 In United States v.

Vega,150 we affirmed the district court’s admission of

evidence that the defendant—on trial for conspiracy to

distribute and possession with intent to distribute heroin—

participated in a drug conspiracy a few years earlier.151

[T]he Government’s evidence of Vega’s

participation in the 1997 drug conspiracy was of

critical importance because Vega had denied

knowledge of the [charged] 1999 conspiracy . . .

. The evidence was highly probative in

demonstrating that Vega knew he was receiving

a drug package . . . and that he was connected to

Jairo, who was a participant in both the 1997

and [charged] 1999 conspiracies. Although the

evidence undoubtedly had some prejudicial

value, we cannot say that the Court abused its

discretion by concluding that this prejudicial

value was not so unfair as to outweigh its

probative value.152

We affirm the district court’s admission of the Bailey

conviction.

V. MISTRIAL CLAIMS

Lastly, Bailey, Macon, and Venable contend that the

district court abused its discretion when it denied their

motions for mistrials based on statements witnesses and the

148

Supplemental Appendix at 31-32 (Government Exhibit

192.1).

149

United States v. Schneider, 801 F.3d 186, 198 (3d Cir.

2015) (internal quotation marks omitted).

150

285 F.3d 256, 263 (3d Cir. 2002).

151

Id. at 260.

152

Id. at 263 (citing United States v. Palma–Ruedas, 121 F.3d

841, 852 (3d Cir. 1997), rev’d on other grounds, 526 U.S.

275 (1999) and United States v. Echeverri, 854 F.2d 638,

643-44 (3d Cir. 1988)).

44

government made at trial.153 Bailey and Venable argue that

the district court should have declared a mistrial after a

prosecution witness, Atlantic City Police Detective Thomas

Holton, mentioned that DDTO associates sexually assaulted

Anthony Rosario during the October 2010 attack. The

prosecution had previously agreed not to introduce the

“sexual assault aspect” of the Rosario attack at trial.154 When

Detective Holton took the stand, he described his interview

with Rosario and his mother after the attack. He testified that,

“[t]he mother first did most the talking and then Anthony did

some of the talking. The mother was visibly upset and

shaken, as was Anthony. They advised that he was taken to a

house, sexually assaulted—.”155 The government immediately

cut Holton off, ending his explanation.156 But defense counsel

objected, and all four defense counsel moved for a mistrial at

sidebar.157 The district court denied the motion, but offered to

give a limiting instruction. Defense counsel rejected this

offer, fearing it might draw more attention to the improper

testimony. The sexual assault issue never resurfaced at trial.

In reviewing the district court’s denial of the mistrial

motion based Holton’s comments, we assess three factors.

We consider: (1) whether the remarks were pronounced and

persistent, (2) the strength of the other evidence, and (3)

curative actions taken by the district court.158 Here, Detective

Holton’s single, fleeting reference to the sexual nature of the

Rosario assault did not generate the sort of prejudice that

153

“We review the denial of a motion for a mistrial based on

a witness's allegedly prejudicial comments for an abuse of

discretion.” United States v. Riley, 621 F.3d 312, 335-36 (3d

Cir. 2010), as amended (Oct. 21, 2010) (internal quotation

marks omitted).

154

Bailey J.A. 2240-41.

155

Bailey J.A. at 3228.

156

Id.

157

During the sidebar, the prosecutor indicated that he had

not had time to speak with Detective Holton that morning

because Holton had been running late. The prosecution also

clarified that it had no intention of bringing out that

testimony, which it had previously agreed not to elicit.

158

Riley, 621 F.3d at 336.

45

necessitates a mistrial.159 The government promptly cut off

Detective Holton’s testimony, and the jury did not receive

any details regarding this issue. Furthermore, Holton’s

comment did not in any way suggest that any of these four

defendants were involved in this attack on Rosario.

Accordingly, we reject the contention that this statement

should have resulted in a mistrial.

Venable also argues that the district court abused its

discretion in failing to grant a mistrial on the basis of a

second inconsequential remark. During their investigation of

the DDTO, two officers collected spent .22 shell casings from

the scene of a shooting at the home of Barbara German. At

trial, Kareem Young testified that he observed Venable with a

firearm on multiple occasions, in particular a .22 caliber rifle

with a sawed-off barrel. Young also testified that Venable

admitted to him that Venable was involved in the Barbara

German shooting. Towards the end of the defendants’ trial,

forensic examiners discovered that the spent shell casing from

the German shooting matched Venable’s .22 caliber rifle.

Because of the late disclosure of this report, the government

agreed that it would not present evidence of that ballistic

match or the “head stamp” (a distinctive marking on the top

of a bullet) of the recovered shell casing.

Nevertheless, at trial, Detective Michael Tracy

accidentally testified that he discovered a casing of a “.22

caliber, head stamp super X”160 bullet at the scene of the

German shooting. The prosecutor immediately cut Tracy off

and told him: “don’t get into the head stamp.”161 Venable

objected, and moved for a mistrial.162 The district court

denied the motion.

Nothing in Tracy’s testimony or any other witness’s

testimony connected Venable’s .22 caliber rifle to the “super

159

See United States v. Long, 748 F.3d 322, 328 (7th Cir.

2014) (single fleeting reference to a murder unconnected to

the case introduced inadvertently and never discussed again

over the course of a lengthy trial does not give rise to a

mistrial).

160

Bailey J.A. 3472.

161

Id.

162

The prosecutor indicated that the witness had been

instructed not to mention the head stamps.

46

X” head stamp. It is unlikely that the jurors even understood

the relevance of Tracy’s reference. Therefore, the district

court did not abuse its discretion in denying Venable’s motion

for a mistrial.

Finally, Macon contends that the government

constructively amended its indictment during its rebuttal

summation, entitling the defendants to a mistrial. During

summation, Macon’s attorney displayed a photograph of

Macon with a group of men who were DDTO rivals. Macon’s

counsel argued that the photograph proved Macon was not a

DDTO associate because if he were, he would not have posed

with rival gang members. In rebuttal, the government argued

that the photograph had been taken in mid-March 2013, after

Mykal Derry had already been arrested and the “Derry

brothers’ reign on the streets of Atlantic City [was] coming to

a close.”163 The indictment charged that the drug-trafficking

conspiracy ran until the end of March 2013. Macon asserts

that the government’s statement regarding the Derry’s

brothers’ “reign” constructively amended the indictment by

shortening the period of the alleged conspiracy.

The argument hardly merits discussion. The

government never asserted that the conspiracy had formally

ended in mid-March 2013. It merely posited the common-

sense inference that Mykal Derry’s influence had waned due

to his incarceration. Furthermore, Macon’s arguments missed

the point of the constructive amendment doctrine. The bar on

constructive amendments seeks to ensure that the jury does

not convict the defendant for uncharged conduct.164 Here, the

government’s rebuttal argument actually narrowed the scope

of the conspiracy, which, if anything, may have assisted the

defendant rather than prejudiced him. Accordingly, we find

that the district court did not abuse its discretion in denying

Macon’s motion for a mistrial.

VI. CONCLUSION

For all the reasons set forth above, we will affirm the

judgments of conviction of each of these four defendants.

163

Bailey J.A. 4689.

164

United States v. Miller, 471 U.S. 130, 144-45 (1985).

47