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
2

_____________

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. 
3

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 
4

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.
5

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 
6

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.
7

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 drugtrafficking 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)).
8

evidence.9Indeed, “‘[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.
9

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)).
10

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. 
11

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.
12

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). 
13

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).
14

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 coconspirators 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.
15

crime of possession in furtherance of a drug-trafficking 

conspiracy or else met Pinkerton’s standard for coconspirator 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 coconspirators.”); United States v. Ramos, 147 F.3d 281, 286 

(3d Cir. 1998) (same).
16

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.
17

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).
18

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).
19

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)).
20

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. 
21

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. 
22

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 
23

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-therecord 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.
24

district court heard argument on the issues. The court then 

conducted the necessary balancing with respect to the nonvideo 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 onthe-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.”). 
25

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 
26

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). 
27

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 onthe-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.
28

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)). 
29

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 
30

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.
31

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)). 
32

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.
33

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). 
34

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). 
35

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 codefendants 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).
36

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-therecord 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).
37

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. 
38

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. 
39

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).
40

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).
41

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. 
42

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 drugtrafficking 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.
43

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.
44

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)).
45

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.
46

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.
47

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 commonsense 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).