2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
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# U S A v . Gon z ale z P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1674

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no va U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr a t or of V i l l a no va U niv e r sit y S choo l of L a

w Di g it al Re posit or y

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w . v i l l a no va . e du . Re c omme nde d C it a t ion

" U SA v . Gonzalez " (2004). 2004 D e cisio n s . P ape r 684. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/684NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT

No. 03-1674

UNITED S TATES OF AMERI CA

v. ANGEL GON ZALEZ, Appellant

On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Crim. No. 02-cr- 00534) Distri ct Judge: Hon. Michael M. Bayl son

Argued May 3, 2004 Be for e: S LO VI TE R, F UE NT ES and BE CK ER , Circu it Judges

(Fil ed: May 25, 2004) David L. McColgin (Argued) Ro bert E pstein Dina Chavar Maureen Kearney Rowley De fend er A ssocia tion of Philad elphia Federal Court

Divisi on Philadelphia, PA l9l06 Attorney s for Appell ant2

Patri ck L. Meehan United States Attorney Lau rie M agid De puty U nited S tates A ttorney Po licy and A ppea ls Robert A. Zauzmer Assist ant Unite d States Attorney Roberta Benjami n (Argued) Assist ant Unite d States Attorney Office of United St ates Att orney Philadelphia, PA l9l06 Attorney s for Appell ee
OPINI ON OF THE COURT

SL OV ITE R, Circu it Judge
. An gel G onz alez app eals fro m th e D istrict Co urt’s jud gm ent a nd c onv ictio n or der
. Gonzalez was sent enced to an i mprisonment term of 120 months fol lowing his conviction for pos sess ion of a fire arm by a c onv icted felo n in vio latio n of 18 U .S.C . § 92 2(g ). Gonzalez argues that he was denied a fai r trial be cause the judge permi tted t he Governm ent to suggest to the j ury, through the cross-examination of a defense witness, that Gonzal ez was part of a gang. I. Bac kgro und Facts On Oc tober 1 5, 200 1, O ffice rs Joh n K rivulka and J osep h Le ightha rdt w ere on duty in Phil adelphi a’s 26 th Police Distri ct when they received a call of a burglary in progress at 218 W est Sergean t Street. Upon arriving at the scen e in their marke d patrol car,3

Officer Krivulka observed Gonzal ez exiting the driver’ s side of a car that was parked parti ally on the st reet a nd parti ally

on the si dewalk. Gonzalez then walked over to M iguel M olina, w ho w as sea ted on the fro nt steps of 2 18 W est Se rgean t Street. Of fice r K rivu lka p ark ed th e pa trol c ar an d w alke d ov er to Go nza lez a nd M olin a. As Officer Krivul ka passed the car from which Gonzale z exit ed, he l ooked insi de and saw a handgun on the fr ont seat . Officer Leighthar dt was alr eady s peaking with both Molina and Gon zalez when O fficer Krivulka came up behind him an d told him there was a

we apon in the c ar fro m w hich G onza lez ha d exite d. O ffice r Leig hthard t then to ld Gonzalez to t

urn around and put

his hands be hind his back. Gonzalez shoved Officer Leighthar dt and fl ed, but was apprehended aft er a bri ef foot chas e. The handgun found in the car was a loa ded Lorcin model wit h an obliterate d seri al number. The part

ies st ipulated at trialthat Gonzal ez had previ ouslybeen convicted of a crime pun ishab le by imp risonm ent of a term exce eding one yea r. The jury subse quen tly found Gonzalez guil ty of one count of poss ession of a fire arm by a c onvicte d felon. Trial Gonzalez’s appeal i s li mited t o his chal lenge t o the questions that the Assist ant U.S. Attorney pos ed to Molina, who was a defense witness at Gonzalez’ s tri al. The Distric t Cou rt held a hearin g ou tside the prese nce o f the ju ry to determ ine the perm issible scope of Molina’ s test

imony. The court st ated that absent an offer of pr oof, it

could not say in t he abstract whether gang affiliati on questions would be relevant on cross-4

examinati on. The Government sought to question Molina about his pri or convict

ions and his nu mero us tattoo s, particu larly the on e on h is arm readin g “fu ck the law,” in ord er to establ ish Molina’ s generalatti tude toward t he law, hi s lack of c redibi lit y, and the possibi lit y that the tattoos refl ected gang membership. It reasoned t

hat if Molina and Gonzalez were members of the same gang, i t might suggest Moli na had motive t o skew his t esti mony so as to materi ally benefit Gonzalez’s de fense. During cross-exam ination, the prosecu tion asked M olina to describe h is derogatory tattoo to the j ury . It

then asked Moli na if anyof his t attoos associ ated hi m with a parti cular ga ng, if he was a member of a gang, and i f he knew any of t he persons t

he prosecutor had named. As the prosecutor explained to the court, she suspected those persons were members of a gang. When Molina answered i n the negative, the pros ecutor moved on. The objecti on by Gonzale z to thi s li ne of questi oning was overruled. Out of the presence of t

he jurythe Dist

rict Court rul ed that

based on the of

fer of proof, the Government was enti tled to “ask about t he relations hip between the defendant and t he witness, if any ,” App. at 104a, but

stopped shor

t of al lowing a separ ate l ine of quest ions about gangs or

stoppi ng the trial f

or a phy sicalexaminati on of tattoos. The court st ated: We’re not goi ng to get i nto a separ ate trajec toryabout gangs, who belongs to what gangs and t

hings l ike that. And I wouldn’ t be inc lined to inter rupt the trial f or phy sicalexaminati ons of any body, but I t hink Mr. Molina can be as ked a bou t tattoos th at are o n his b ody. . . . Tha t wo uld ten d to sh ow his motive or his bias, Imean that’s why they’ re relevant. I mean if he has a tattoo o n his b ody w hich is d erog atory to the law, I th ink tha t’s releva nt to5

come out on cross -examination. . . . I t goes t o his moti ve and bias. I thi nk it’s prop er. Bu t that to [m e] sou nds lik e that w ill be the e xtent o f it. App. at 103a-04a
. II. Discussi on We review district

court dec isi ons regar ding the a dmissi bili ty of evidence for abu se o f dis creti on. United States v. Saada , 212 F.3d 210, 220 (3 d Cir. 2000) . “[T]he proper bounds of

cross- examinati on are withi n the sound di scretion of the tri al court and, absent a s howing of abuse, t he exerci se of that

discr etion wil l not be reversed byan appell ate court.” United States v. St evens , 935 F.2d 1380, 13 93 n.17 (3 d Cir. 1991) (quoti ng Lewis v. Rego Co. , 757 F.2d 66, 73 (3 d Cir. 198 5)). The Un ited Sta tes Su prem e Co urt has stated th at gen erally, “[p]ro of o f bias is almost al ways re levant

because the jury , as fi nder of fact and weigher of cr edibil ity , has hist orical ly been enti tled to assess all e vidence which might bear on the accuracyand trut h of a witness ’ tes timony .” United States v. Abel , 469 U.S. 45, 52 (1984). Here, the Distri ct Court he ld that

the evi dence eli cite d could go to e stabl ishi ng motive and bi as of the defense witness. Go nzale z argu es that th e D istrict Co urt imp rope rly allowe d the G over nm ent to po se ga ng af fil iat io n q ue sti on s to M ol in a b ec au se th e G ov er nm en t h ad fa ile d t o l ay a proper foundation for t

hose questions. He urges thi s court to adopt t

he holding of

the Court of Appeals for

the Tenth Circuit t

hat “[a] lthough Abel permits the int roducti on of6

evidence of gang members hip to s how bias, t he government must

firs t lay a foundati on showing that

the defendant

and the witness to be impeached bel ong to the s ame gang.” U ni ted St ate s v . K eys , 899 F.2d 983, 986 (10 th Cir. 1990). The Government conc edes that t his rul e of law is c orrect , but argues that “there is no bar to l ayi ng that f oundation through t he defense witness’ testi mony” and that becaus e “the pr osecutor tri ed but fai led to lay a foundati on [through testi mony],
. . . no evidence of gang members hip was admitt ed.” Appell ee’s Br. at 26-27. While it may have been more prudent for the Dist rict Court to r equire t

he Government to prof

fer evi dence in i ts poss ession l inking Molina and Gonzalez to t

he same gang befo re it questi oned M olina, the Governm ent did have a good faith basis, founded on information from a pol ice det ecti ve, for s eeking t o establ ish a gang- related connecti on between Molina and Gonzalez. Furthermore, the prosecut or did not stray outside the discret

ionary boundaries set

forth by the District Court. Under these circumst ances, we cannot hold that

the court

abused it s discretion i n allowing t he G ov er nm en t to qu es tio n M ol in a a bo ut hi s re lat io ns hi p w ith G on za lez in an ef fo rt to lay a foundation for further gang affiliati on questions. Gonzalez next argues that the Government committ ed prosecut orialmisconduct by suggesti ng and insi nuating t hat Molina and Gonzal ez were gang members, t hereby causing p rejudice. W e ordinarily review fo r abuse of discretion the D istrict Court’s dec ision s on claim s of pro sec uto rial m isco ndu ct. United S tates v. Mo lina-Guev ara , 967

F.3d 69 8, 703 (3 d Cir. 1996) . The Government argue s, however, that be cause Gonzalez failed to me ntion p rosec utorial m iscon duct a t trial or in h is M otion f or a N ew Trial, Gonzalez fail ed to pres erve thi s iss ue. The proper standar d of revie w should ther efore be plain e rror. “Under plai n error review, [ the court ] may gr ant rel ief i f (1) the District Court committed an ‘err or,’ (2) i t was ‘pl ain, ’ and (3) it af fected ‘ substant

ial rights ’ of the defendant. ” Un ited Sta tes v. P lotts , 359 F.3d 247, 249 (3 d Cir. 2004) (int ernal c itat ion omitted). Gonzalez has not

shown plain er

ror. The Government did not e xceed the bounds of permiss ible c ross- examinati on establ ished bythe Dist rict Court in t

he inte rest

of giving the Government t

he opportuni ty to est ablis h bias for the purpos e of impeachi ng Molina. But even under the abuse of di scretion st andard, Moli na’s cl aim fail s. The questions of gang affiliatio n w ere lim ited in sc ope a nd am oun ted to a sma ll piece o f the to tal agg regate information regar ding Molina’s credibi lit y. The prosecut ion est ablis hed that Molina (1) lied to police during t

he init ial f ield i nvesti gation at the t ime Gonzalez was arrested by giving an alia s; (2) ha d m ultiple p rior co nvictio ns inc luding cons piracy to d istribute heroine a nd crack, manufacturi ng and possess ing a controll ed substa nce, making terr orist ic threats and harassment , res isting arr est, and many other charge s and arr ests; (3) admitt ed to viol ating hi s probation “a number of times”; ( 4) was then se rving four to ten year s for conspi racy to dis tri bute drugs ; and (5) had a tattoo on his arm readi ng “fuck the law .”8

The Go vern men t appro ache d the to pic of gang affiliatio n on three s epara te occasions in the presence of the jury . The fir st i nstance oc curred when Molina was asked “do you know any one, the Carbonell as, Carbonel ls.
. . . Carbonell is?” App. at 128a. The word “gang ” was n ever used . The seco nd instance occurred whe n M olina wa s asked “a re [an y of you r] tatto os a sso ciate d w ith a p artic ular gan g th at you ’re a me mb er o f?
. . . You’re not a member of a ga ng, y ou’re not involved wit

h any gangs ?” App. at 129a130a. The thi rd and fina l ins tance occur red when Molina was asked, “Do you know anyone by

the name of Raffi .
. . . Freddie ? . . . J une Bug ? . . . [or] Mike?” App. at132a133a. After

respondi ng “no” to these questions, Molina was asked if he knew “anybody

asso ciate d w ith th ose gan gs? ” A pp. a t 13 3a. There was no abuse of di scretion in t he District Court ’s rul ing that Gonzalez had not shown prosecutorialmisconduct. Gonzalez argues that unde r the r ules r egarding prosecut orialmisconduct e stabl ished i n Berger v. United State s , 295 U.S . 78 ( 193 5), a prosecutor may not make improper insinuations or suggesti ons to the jurythrough crossexa min ation of a wit nes s. However, the Berger Court noted t hat it s holdi ng was tied closely to th e fac ts prese nt in tha t case, sta ting tha t: If the c ase agai nst Berger had been str ong, or, as some court s have sai d, the evidence of hi s guil t “overwhel ming,” a di fferent conclusi on might have been reached. Moreover, we have not here a case where t he misconduct

of the pros ecuti ng attorney was sl ight or confined t o a singl e inst ance, but one wh ere su ch m iscon duct w as pro nou nced and p ersisten t, with a prob able cumulati ve effect upon t he jurywhich cannot be di sregar ded as incon sequ ential.9

Id. at 89 (internal citations om itted). In contr ast, in thi s case the Government merely asked on thr ee separa te occas ions if Molina knew people the pros ecutor be lieve d to be members of a gang or if his tattoos affiliated him w ith a gang. T hese qu estions did no t convey to the jury the prosecu tor’s personal k now ledge that M olina wa s a gang mem ber. M oreover, be cause there w as very little follow -up a fter M olina p rovid ed ne gative answ ers, the p rosec utor d id no t insinu ate that Moli na was ly ing. In li ght of the large a mount of non-gang re late d information eli cite d about Molina’s pr opensity for untrut hfulness and his di sregar d for the l aw, we conclude that there w as am ple oth er evid ence to lead the jury to re ach th e sam e adv erse cr edibility finding. The Government did not c reate a clear and substa ntialprejudi ce resul ting i n a

man ifestly unf air trial, and we reject G onza lez’s cla im of prose cutoria l misco ndu ct. Gonzalez’s fi nal argument is that the Distri ct Court’ s all eged error and the prosecut or’s al leged misc onduct were prejudi cial and harmful t o him. In United States v. Cross , 308 F.3d 308 ( 3d Cir. 2002) , we held that imprope r admissi on of evidence i s noncons titutional in nature and th at the n on-c onstitu tional h armle ss erro r stand ard ap plies to

suc h situ ation s. Id. at 326. We need not decide whethe r the al leged er ror i n this case was

cons titutional o r non -con stitutiona l beca use w e hav e not f oun d erro r. Wh ether w e app ly the constitutional harmless e rror doc tri ne that requir es a showing that the error was “harmless beyond a r easonable doubt” or t he non-constitutional harmless e rror doc tri ne10

that requires a showing that it i s “highl y pr obable that the error did not cont

ribut e to the judgment, ” id. , we re ject Gon zalez’s argum ent that the com bination of the prosecuto r’s misconduct a nd the court ’s st amp of approval byoverrul ing objec tions to gang affi liat ion questi ons resul ted in t

he denial of a fair

tri al. As we concluded above, t he prosecution did not com mit miscon duct and the court did n ot comm it error by allowing prelimin ary “relations hip” and “gang aff ili ation” questi ons in an effor t to l ay a foundation for the admissi on of gang membership evi dence. Moreover, even if we were to fi nd nonconsti tuti onal err or, i t would have been harmless. The overwhelming weight of additio nal ba d cha racter e viden ce co ncern ing M olina, sp ecifica lly his lying to po lice, his use of an alias, his criminal history, his numerou s probation v iolations, and his dero gatory tattoo, would have been s uffici ent to l ead the j ury to concl ude that Molina was not credibl e. Thus, even if there were err or, t he error did not cont

ribut e to the judgment and was therefore harmless. CONCLU SI ON For the for egoing rea sons, we wil l affi rm the Dist rict Court’s j udgment of

con victi on f or p oss essio n of a fir earm by a c onv icted felo n in vio latio n of 18 U .S.C . § 922(g).1 See also United Stat es v. Sar gent , 98 F.3d 325, 328 (7th Cir . 1996) ( noting “t he insidious qua lityof such evidence and the d amag e it can do”). 11 BE CK ER , Circuit

Judge, di ssenting. In United Stat

es v. Abel , 469 U.S. 45, 54-56 (1984), the Supreme Court establ ished that i mpeachment of a witnes s through ga ng affil iati on may be attempted onl y i f that gang aff iliatio n is s uff icien tly prob ative of th e w itnes s’s p oss ible b ias to wa rd th e de fen dan t. As Abel clearly imp lies, gan g-relate d evid ence is insidio us, an d the d ange rs of a dm itting it are grea t. As Judge Flaum wrote in Un ited Sta tes v. Irvin , 87 F.3d 8 60, 865 (7 th Cir. 1996): Gangs generall y ar ouse negati ve connotations and oft en invoke i mages of cri minal activity and deviant beh avior. There is therefore alw ays the possibility that a jury will at tach a pr opensity for

committi ng crimes t o defendants who are affil iate d with gang s or tha t a jury’s neg ative f eeling s tow ard g angs will inf luenc e its verd ict. Gu ilt by as soc iatio n is a gen uin e co nce rn w hen eve r ga ng e vid enc e is a dm itted .[ 1 ] The se pre cepts a re as tru e toda y as they w ere the n. W hile the majo rity does n ot den y their validi ty , it , in e ffect, deflect s them by downplayi ng the ext ent of the imputation of gang acti vity to Molina and i ts i mpact on Gonzalez’ s case. Its e fforts are fl awed. The majorit

y acc uratel y des cribes the te sti mony of Officer s Krivulka and Leighthardt, but i t neglects t o explain why Molina’s testimony was crucial: The case against Gonzalez came down to a credibili ty test between the offi cers’ testimony and t hat of the wit nesses put

on by Gonzale z. Molina’ s test imony was cr

ucial because (1) he was present that ni ght and observed the event s test ifie d to by the offi cers; (2) he cl aimed that12

Gonzalez was not i n or near t he gold car

that was par

ked in front

of 218 West Sergeant Street (the car in which t

he gun was found); and ( 3) he st ates t hat Gonzalez arri ved at the scene in a

white car . Molina’ s test imony was cor

roborat ed in si gnific ant part by that of Margaret Saunders, the neighbor who initi allycalled in the dis turbance, who was also present . In t

he absence of any

physi cal evi dence ty ing Gonzalez t o the gun, the eyewitness testimon y was critical. Since it was co nflicting, the unde rmining o f M olina’s testimo ny by insinu ating h is mem bersh ip in a g ang is cente r-stage in this ap peal. To be sure, a s the majority explai ns, Molina was ot herwise i mpeached. But the clear a nd re peate d intim ations th at M olina w as asso ciated with a gan g w ere ina ppro priate and may well have ti pped the bal ance in the prosecution’s f avor. The i nsinuations and their frequent repeti tion are demonstrated by t he excerpt s from the t

ranscript, atta ched as an appendix t o this opinion. In one particularlyegregious line of questi oning, t

he prosecut or names cert ain peopl e and asks Molina i f he knows any of t hem. When Molina answers in the negative, she nevertheless assumes not only their very existence, but also their membership i n a gang: Q. Do you know anyone bythe name of Raffi? I s that a no? A. No. Q. Freddie? June Bug? That’s a no? A. No. Q. And M ike? A. No. Q. Well, Iguess y ou could know a Mike, but any of those peopl e live in the area of 8 and O ntario, o r han ging out the re? D oesn ’t ring a b ell? A. No. Q. You d on’ t kn ow that? You don’ t kn ow any bodyass oci at ed wi th t hose gang s?13

(App. 132a-133a) . When Gonzalez’s couns el obje cted, the pros ecutor wit hdrew the questi on and stated within he aring of t he jury : “[W]e’l l jus t indi cate that he doesn’ t know the peop le by those nam es.” (App . 133a). Compounding the probl em is that the pros ecuti on never demonstr ated a foundation for inqui ring i nto Molina’s gang acti vity (which Molina deni ed). The pr osecutor repres ented t o the Court t hat one Detect

ive Brown had given her information that

led her to believe that M olina and G onzalez w ere mem bers of the sa me ga ng (hen ce M olina’s putativ e bias) , but sh e nev er ma de a p roffe r supp lying the b asis fo r her cla imed goo d faith belie f. Neither did t

he District Court

ask her t o supplyone. The Dist rict Court was underst andablywary of pur suing this l ine of i nquirytoo far a nd ulti matelycut it off, but not before the damage had been done. In my vi ew, in the absence of much st ronger foundation, t

he juryshould not

have been permitted to he ar the ga ng insi nuations ; rat her they should have bee n “cut off at the pass.” N either was the error harm less, notwithstand ing the other as saults on M olina’s credibi lit y, for the harmless e rror s tandard applicable to t he tri al err or clai m is high pro bab ility that th e err or d id n ot co ntrib ute to the ju dgm ent. See United St ates v. Gambone , 314 F.3d 163, 177 -78 (3d C ir. 2003). “‘High probab ilityrequires that the co urt possess a sure convi ction t

hat the error

did not pr ejudic e the defendant .’” Id. (quoti ng United Stat

es v. Zehr

bach , 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc) (cit ations

om itted)). G iven th at I do n ot po ssess th at con viction , I respe ctfully disse nt, and wo uld14

revers e and rema nd f or a n ew trial.15 AP PEN DIX Q. Do you know the Carbonells? A. Excuse me? Q. Do you know the Carbonells? A. Carbonell s? No. Q. Carb onel li s? A. Uh-u hm. Q. Is that a no? A. Yeah , t

hat ’s a no , Idon ’t

kno w th em. Q. I’d l ike y ou to tel l us, on your arms y ou have a number of ta ttoos , is that not

correc t? A. Yeah, ye ah. Q. And – MR . COO PER : Objection, Y our H onor.

THE C OUR T: Overrule d. Q. In pa rticular, you have one ta ttoo on your fo rearm , have you no t? A. Yeah. Q. Can you tell us w hat it says, the one th at has s om e lang uage on it? A. What it says? Q. Yes.16

A. Well, i t say s – you want me to say the whole word, t he whole thi ng? Q. You h ave it

on y our ar m. A. It sa y s f uc k the la w. Q. And y ou h ave th atta tt ooe d on y our ar m? A. Yeah. Q. An d you h ave a num ber o f othe r tattoos o n your b ody, is that c orrect? A. Yeah. Q. And are those t attoos associ ated with a parti cular ga ng that y ou’re a member of? A. No. Q. You’re not a mem ber of a gang, you’re not involved with any gangs? A. No. Q. An d that sta teme nt’s as tru e as ev erything e lse you sa id here today, is tha t right? A. Yeah. * * * Q. Do you know anyone bythe name of Raffi? I s that a no? A. No. Q. Freddie? June Bug? That’s a no? A. No. Q. And M ike? A. No.17

Q. Well, Iguess y ou could know a Mike, but any of those peopl e live in the area of 8 and O ntario, o r han ging out the re? D oesn ’t ring a b ell? A. No. Q. You do n’t know that? You don’t know anybody associated with those gangs?

MR. COOPER: Objecti on, Your Honor. There ’s been no foundat ion laid t hat the re is a gang or any one is known in a gang

or an ything like that. It’s ass um ing a f act tha t’s not in evidence. THE COURT: You want to rephras e the l ast ques tion. MS. BENJ AMIN: I guess I ’llleave i t as i t was before and wit hdraw the last question and we’ll just indicate that he d oesn’t know the peo ple by those names.