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w . v i l l a no v a . e du/thir dc ir c uit_2014/1086NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 13

- 4735

_____________

UNITED STATES OF AMERICA

v. BRIAN MCNEAL,

Appellant

_____________ On Appe al from the United States District Court for the Eastern District of Pennsylvania District Court No. 2

- 13

- cr
- 00016

- 001 District Judge: The Honorable Cynthia M. Rufe

_____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 8, 2014
Before: SMITH, SHWARTZ, and ROTH, Circuit Judges

(Filed: October 15, 2014 )

_____________________ OPINION

_____________________ SMITH, Circuit Judge.2

On April 4, 2013, a jury found Brian McNeal guilty of the illegal possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On December 13, 2013, the District Court sentenced McNeal to 210 months ’ imprisonment and three years of supervised release

. McNeal appeal s , contending that his conviction should be set aside for four reasons : (1) the District Court erred by denying in part his request to redact certain aspects of his statements to law enforcement officials ; (2) the Distric t Court erred by failing to dismiss a juror who

saw an unredacted version of McNeal’s statement s ; (3) prosecutorial misconduct deprived him of a fair trial; and (4) his counsel was ineffective. 1 For the reasons that follow, we will affirm the judgment of the District Court. 2
I. Police officers executed a traffic stop of McNeal’s veh icle at approximately
2:50 a.m. on April 2, 2011. During the stop, t he officers saw within McNeal’s reach in the rear passenger area of the car a plainly visible handgun on to p of a shoebox

. When McNeal admitted he did not have a permit to carry the gun, the officers arrested him and placed him in the patrol car

. While he was in t he patrol

1 McNeal’s assertion of prosecutorial misconduct includes the argument that defense counsel’s failure to object during the closing argument deprived him of the effective assistance of counsel as guarante ed by the Sixth Amendment. Because our preference is to address ineffective assistance claims on collateral review, we will not address the merits of the ineffectiveness claim here. United States v. Thornton , 327 F.3d 268, 271

- 72 (3d Cir. 2003) (citing M assaro v. United States , 538 U.S. 500 , 504

- 05 (2003))

. 2 The District Cour t exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291

.3

car, McNeal called his paramour , Muriel James, and directed that she come to the

scene and tell the police that she owned the gun

. James complied , but the police did not believe that the gun was hers. At the po lice station, McNeal waived his Miranda 3 rights

. During his interview with Detective Leonard Azzarano, McNeal acknowledged that h e owned the car, but claimed that he did not know the gun was in it. McNeal told Detective Azzarano that it was James’ s gun and that she purchased it for protection while McNeal was in prison. McNeal explained that “[w]e’re not allowed to have it in
the house because of my parole.” Supp. App. 336. He further admitted that he had convictions that prohibited him from possessing a gun. McNeal did not challenge the admissibility of his s tatements to Detective
Azzarano , but requested that the Court redact that portion of his statement indicating that he had more than one felony conviction, that James purchased the firearm when he was in prison, and that he was on parole. McNeal argued these facts were unfairly prejudicial and should be excluded u nder Feder al Rule of Evidence 403. The District Court agreed that the reference to McNeal’s imprisonment should be redacted from his written statement, but denied the motion

to redact the other information

. The case proceeded to trial. During deliberations, t he j ury asked to see McNeal’s statement . T he unredacted statement referencing his time in prison was

3 See Miranda v. Arizona , 38 4 U.S. 436, 444 (1966).4

inadvertently shown to the jury on the computer screen for a moment

. Juror #3 notified the Court that he had seen McNeal’s “wh en I was in jail” comment

. The District Judge questioned Juror #3, who expressed his belief that , even though he could not “unremember it,” he could still deliberate fairly and impartially. Nonetheless, McNeal moved to dismiss Juror #3

. The Court denied th at request. The reafter, the j ury returned a verdict of guilty.
II. We reject McNeal’s argument that the District Court erred by admitting into evidence the fact that he had more than one conviction and was on parole. We review a district court’s evidentiary rulings for abuse of dis cretion. United States

v. Green , 617 F.3d 233 , 2 51 (3d Cir. 20 1 0). Under Federal Rule of Evidence 403 , a District Court “ may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . [ inter alia ,] unfair prejudice. ” We conclude that the District Court did not abuse its discretion as the probative value of the se facts was not substantially outweighed by the risk of unfair prejudice

. McNeal also asserts that the District Court erred by refusing to dismiss Juror #3 , who momentarily saw the unredacted statement that McNeal had served time in prison . In United States v. Vega , 285 F.3d 256, 265 (3d Cir. 2002) , we instructed that a challenge of this nature is subject to review for abuse of discretion. A review of the t ranscript shows that the District Court carefully conducted two voir dires with this juror, and spoke with the jury foreperson and another juror. After5

hearing the position of the parties, the Court found that Juror #3’ s knowledge of the unredacted statem ent would not affect his ability to p erform his duties as a juror. We conclude that t he District Court did not abuse its discretion. Finally, McNeal argues that his convict i on should be set aside because prosecutorial misconduct deprived him of a fair t rial. According to McNeal, the prosecutor improperly vouched for the government’s witness es during both her closing and rebuttal arguments

. Because defense counsel did not object to the

statements in the prosecutor’s closing, we review for plain error. U nited States v.
Brennan , 326 F.3d 176, 182 (3d Cir. 2003) (citation omitted)

. But, because defense counsel objected to the alleged impermissible vouching in the prosecutor’s rebuttal, we review those comments for harmless error

. Fed. R. Crim. P. 52(a);
U nited States v. Helbling , 209 F .3d 226, 241 ( 3d Cir. 2000). To establish impermissible vouching, McNeal must show that the prosecutor assured the jury of a g overnment witness’s c redibility and that t his assurance must have been based on the prosecutor’s p ersonal knowledge or other information outside of the record. See U nited States v. Vitillo , 490 F.3d 314, 327 (3d Cir. 2007) ; s ee also Brennan , 326 F.3d at 183

. We conclude that the prosecutor’s
remarks during closing argument were proper comments on the evidence adduced at trial and conclude that the statements in rebuttal were proper responses to the defendant’s closing argument. See United States v. Weatherly , 525 F.3d 265, 272 (3d Cir. 2008).6

For the reasons set forth above, we will affirm the jud gment of the District
Court

.