1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-23-1997

USA v. Vaulin

Precedential or Non-Precedential:

Docket 97-1333

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Recommended Citation

"USA v. Vaulin" (1997). 1997 Decisions. Paper 280.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/280
Filed December 23, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1333 

UNITED STATES OF AMERICA 

v. 

MOSHE VAULIN 

 Appellant 

Appeal from a Judgment of Conviction 

From the United States District Court 

for the Eastern District of Pennsylvania 

(No. 96-cr-00267-2) 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

December 4, 1997 

BEFORE: COWEN and McKEE, Circuit Judges, and 

WEIS, Senior Circuit Judge 

(Filed December 23, 1997) 

 Jeffrey M. Miller, Esq. 

 Nasuti & Miller 

 21 South 5th Street 

 The Bourse, Suite 860 

 Philadelphia, PA 19106 

 Attorney for Appellant 

 Christopher R. Hall, Esq. 

 Office of United States Attorney 

 615 Chestnut Street 

 Suite 1250 

 Philadelphia, PA 19106 

 Attorney for Appellee 
OPINION OF THE COURT 

PER CURIAM: 

The defendant appeals from his conviction for two counts 

of receipt of stolen property in violation of 18 U.S.C. SS 371 

and 2315. He alleges that the district court erred in 

denying his motion for a mistrial. For the reasons that 

follow, we will affirm. 

The district court addressed the issue now before us in 

ruling upon the defendant's post-trial motions under Fed. 

R. Crim. P. 29(c) and 33, and we affirm substantially for the 

reasons set forth by the district court in its April 21, 1997 

memorandum. However, given the nature of the challenged 

prosecutorial conduct, we think it appropriate to 

supplement what the district court has already said about 

this case. 

I. 

Defendant and his codefendant, Morris Gershtein, each 

operated jewelry stores in "Jewelers Row" in Philadelphia, 

Pennsylvania.1 The Government charged that the defendant 

and Gershtein entered into a relationship with Harold 

McCoy, whereby the latter would engage in a series of 

"smash and grab" robberies of jewelry stores in Virginia, 

North Carolina, Texas and elsewhere, and sell the proceeds 

of those robberies to defendant and Gershtein. McCoy was 

arrested in Texas for robbing a jewelry store there and 

transferred to Philadelphia, where he was charged in 

relation to several "smash and grab" robberies. Thereafter, 

McCoy entered into a plea agreement wherein he agreed to 

cooperate with the police in their investigation of Vaulin 

and Gershtein. As part of his cooperation McCoy wore a 

"body wire" and recorded conversations with Vaulin and 

_________________________________________________________________ 

1. We need not set forth the facts in great detail as they are adequately 

summarized in the district court's memorandum opinion. We will, 

therefore, reiterate only those facts which are pertinent to the issue 

upon 

which we wish to elaborate. 

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Gershstein while selling them watches that appeared to 

have been stolen from other jewelry stores.2 Vaulin was 

arrested almost immediately after purchasing the watches 

from McCoy and proceeded to a jury trial jointly with 

Gershtein on the aforementioned charges. 

During the course of that trial, the Government called 

McCoy as a witness. On redirect examination, the Assistant 

United States Attorney asked McCoy whether he had 

received any threats while in prison because of his

cooperation with the Government. McCoy answered that he 

received many death threats from inmates who are from 

Philadelphia. The prosecutor then asked McCoy why an 

inmate might threaten to kill him, but defense counsel 

objected and the court called counsel to sidebar because of 

its concern over the obvious dangers of this line of 

questioning. At sidebar, the prosecutor conceded that the 

threats did not come from Vaulin or Gershtein, and that 

these defendants had nothing to do with any threats. The 

court denied the defense motions for a mistrial, and asked 

the Government to clarify its question to eliminate any 

perceived connection between the threats and the 

defendants. The Assistant U.S. Attorney then asked McCoy: 

"You were threatened at Lewisburg but it had absolutely 

nothing to do with these defendants here, is that correct?" 

However, McCoy responded, "it was just basically-- 

directly, I am going to say no, not directly." App. at 124. 

Another sidebar ensued during which defendants renewed 

their motion for a mistrial fearing that McCoy's answer 

implied that the defendants had threatened McCoy 

indirectly. Nonetheless, the court once again denied that 

motion. 

Following this sidebar, the court instructed the jury as 

follows: 

 This is by way of clarification. At sidebar here, the 

 Government and the attorneys for the defendant 

 stipulated and agreed that these two defendants that 

 are in this courtroom on trial, had nothing whatsoever 

_________________________________________________________________ 

2. In actuality, the watches that he sold to the defendant and Gershtein 

were provided McCoy by the FBI for use in this sting operation. 

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 to do with any threats that this man may have 

 received. That is to be clarified and made clear. 

App. at 126. It is this exchange upon which we comment. 

II. 

It is obvious that this case is not like those cases 

exemplified by U.S. v. Gonzales, 703 F.2d 1222 (8th Cir. 

1993), in which evidence of a threat to a witness can be 

linked to a defendant and therefore tends to establish a 

defendant's consciousness of guilt. In that situation, "the 

probativeness of the death threat [outweighs] any danger of 

undue prejudice." Id. at 1223. Here, the Government

concedes that none of the death threats that McCoy 

received came from either of the defendants who were on 

trial. Rather, the threats were apparently the result of a 

prison code that requires inmates to be antagonistic to any 

inmate who cooperates with the Government in criminal 

prosecutions. 

The Government attempts to justify its inquiry here by 

arguing that it was appropriate to bring out McCoy's 

concerns about remaining in prison in order to counter 

defense counsels' attempt to cross-examine McCoy about 

the "sweet deal he had made with the Government." See 

Appellee's Br. at 11. However, we are unpersuaded by the 

logic of this explanation. 

It goes without saying that persons in prison would

prefer not to be there and may, therefore, avail themselves 

of an opportunity to reduce the amount of time they have 

to spend in prison whether or not they are receiving any 

threats while they are incarcerated. Thus, the fact of 

incarceration is, by itself, all that is needed for the average 

person to understand why anyone would enter into a 

"sweetheart deal" to shorten a period of incarceration. It 

also should go without saying that any prosecutor, 

regardless of his or her experience, ought to appreciate that 

when a cooperating witness is asked about death threats 

that he or she has received while in prison, a reasonable 

juror might readily assume that the defendant is behind 

such threats. Common sense would cause a juror to 

wonder why else the prosecutor would ask such a question. 

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Accordingly, the prosecutor's opening of Pandora's box here 

is as improper as it is ill advised. It invited the jury to 

return a verdict based upon an inappropriate and 

erroneous assumption, and then beckoned to them to 

accept that invitation by exercising the common sense that 

most trial courts instruct them to utilize while deliberating. 

Fed. R. Evid. 401 defines "relevant evidence" as follows: 

 evidence having any tendency to make the existence of 

 any fact that is of consequence to the determination of 

 the action more probable or less probable than it would 

 be without the evidence. 

Despite the instant prosecutor's assertion to the contrary, 

we are hard pressed to see how, under the circumstances 

here, evidence that an inmate received death threats that 

are no way connected to a defendant on trial is relevant 

during the course of that defendant's trial. 

This inquiry may have had some highly attenuated, 

theoretical relevance, because it bolstered the prosecutor's 

argument that the witness would rather have been outside 

of prison than inside of it. However, even assuming that 

such an argument would allow these questions to survive 

scrutiny under Rule 401, they still would fail the balancing 

test imposed by Fed. R. Evid. 403. The probative value is so 

minimal and the risk of prejudice so certain that it fails 

that test. The district court correctly sustained the defense 

objection to it. 

The Government attempts to justify the questions 

regarding death threats by relying upon U.S. v. 

Frankenberry, 696 F.2d 239 (3d Cir. 1982) cert. denied, 463 

U.S. 1210 (1983), and U.S. v. Vastola, 899 F.2d 211, 235 

(3d Cir. 1990) vacated on other grounds, 497 U.S. 1001 

(1990). See Appellee's Br. at 11-12. However, our holdings 

in those cases do not ameliorate our concern over what the 

prosecutor did here. In both Vastola and Frankenberry, the 

fear that raised the spectre of undue prejudice was

testimony that was elicited to explain a witness's 

participation in the Witness Protection Program. Although 

participation in that program can, under some 

circumstances, unfairly suggest a defendant's 

dangerousness to a jury, that was not the situation in 

 5 
either of those cases. Moreover, in Frankenberry, evidence 

of the witness's participation in the Witness Protection 

Program was relevant to explain to the jury that the 

Government was financially aiding the witness and 

conferring a benefit upon him. Thus, it was not only 

appropriate for this testimony to be elicited by the 

prosecutor, it was advisable and perhaps even required. We 

emphasized that "[t]he government explains that it elicited 

[the witness's] testimony . . . because it was relevant that it 

was financially aiding him and to rebut any inference that 

the government was buying his testimony." Id. at 239. In 

Vastola, we cited Frankenberry and noted that even when 

such evidence is admissible, it "is a matter that must be 

handled delicately." 899 F.2d at 234. The circumstances of 

this prosecution fell short of the mark needed to justify 

eliciting testimony from which a jury would infer a

defendant's dangerousness. 

Nevertheless, for the reasons stated by the district court, 

we do not believe that this line of questioning supports the 

defendant's request for a new trial. As noted above, the trial 

judge immediately gave a strong curative instruction 

informing the jury that the defendants "had nothing

whatsoever to do with any threats" that the witness had 

received. Although there are cases where the strongest of 

curative instructions remains insufficient to"unring" the 

bell, we do not believe that McCoy's testimony is such that 

any prejudice that resulted from it was not eliminated by 

the district court's immediate, direct, and insightful action. 

"We must presume that a jury will follow an instruction to 

disregard inadmissible evidence . . . unless there is an 

overwhelming probability that the jury will be unable to 

follow the court's instructions, and a strong likelihood that 

the impact of the evidence would be devastating to the 

defendant." U.S. v. Thornton, 1 F.3d 149, 157 (3d Cir. 

1993). 

Moreover, after the question was asked, and the curative 

instruction given, the prosecutor did not return to the 

subject nor attempt to exploit McCoy's answer to the 

questions. The district court did not conclude that the 

prosecutor engaged in intentional misconduct in asking 

these questions and this record does not cause us to 

 6 
disagree with that conclusion. Nevertheless, we would hope 

that, in the future, the Government would exercise better 

judgment in conducting an examination of a witness such 

as McCoy and would not bring out this kind of testimony 

unless it is relevant to some issue in the case. 

III. 

Accordingly, for the reasons set forth in the 

memorandum of the district court, we will affirm the 

judgment of conviction. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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