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D ock e t 97-1333

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. e du/thir dc ir c uit_1997/280Filed 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 AppelleeOPINION OF THE COURT

PER CURIAM:

The defendant appeals from his conviction for two c ounts 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 u s in ruling upon the defendant's post-trial motions unde r Fed. R. Crim. P. 29(c) and 33, and we affirm substantial ly for the reasons set forth by the district court in its Apri l 21, 1997 memorandum. However, given the nature of the challe nged 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, ea ch operated jewelry stores in "Jewelers Row" in Philad elphia, Pennsylvania.1 The Government charged that the defe ndant and Gershtein entered into a relationship with Haro ld McCoy, whereby the latter would engage in a series of "smash and grab" robberies of jewelry stores in Vir ginia, North Carolina, Texas and elsewhere, and sell the p roceeds
of those robberies to defendant and Gershtein. McCo y was arrested in Texas for robbing a jewelry store there and transferred to Philadelphia, where he was charged i n relation to several "smash and grab" robberies. The reafter, McCoy entered into a plea agreement wherein he agre ed to cooperate with the police in their investigation of Vaulin and Gershtein. As part of his cooperation McCoy wor e a "body wire" and recorded conversations with Vaulin and

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1. We need not set forth the facts in great detail as they are adequately summarized in the district court's memorandum opini on. We will, therefore, reiterate only those facts which are per tinent to the issue

upon which we wish to elaborate.

2Gershstein while selling them watches that appeared to

have been stolen from other jewelry stores.2 Vaulin was arrested almost immediately after purchasing the wa tches from McCoy and proceeded to a jury trial jointly wi th Gershtein on the aforementioned charges.

During the course of that trial, the Government cal led McCoy as a witness. On redirect examination, the As sistant United States Attorney asked McCoy whether he had received any threats while in prison because of his cooperation with the Government. McCoy answered tha t he received many death threats from inmates who are fr om Philadelphia. The prosecutor then asked McCoy why a n inmate might threaten to kill him, but defense coun sel objected and the court called counsel to sidebar be cause of its concern over the obvious dangers of this line o f questioning. At sidebar, the prosecutor conceded th at 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, an d 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 absolu tely nothing to do with these defendants here, is that c orrect?" 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 rene wed their motion for a mistrial fearing that McCoy's an swer implied that the defendants had threatened McCoy indirectly. Nonetheless, the court once again denie d that
motion.

Following this sidebar, the court instructed the ju ry as follows:

This is by way of clarification. At sidebar here, the Government and the attorneys for the defenda nt stipulated and agreed that these two defenda nts that are in this courtroom on trial, had nothing whatsoever

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2. In actuality, the watches that he sold to the de fendant and Gershtein were provided McCoy by the FBI for use in this stin g operation.

3to do with any threats that this man may hav e

received. That is to be clarified and made c lear.

App. at 126. It is this exchange upon which we comm ent.

II.

It is obvious that this case is not like those case s exemplified by U.S. v. Gonzales, 703 F.2d 1222 (8th Cir. 1993), in which evidence of a threat to a witness c an be
linked to a defendant and therefore tends to establ ish a defendant's consciousness of guilt. In that situati on, "the probativeness of the death threat [outweighs] any d anger 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 wer e on trial. Rather, the threats were apparently the resu lt of a prison code that requires inmates to be antagonisti c to any inmate who cooperates with the Government in crimin al 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 coun ter defense counsels' attempt to cross-examine McCoy ab out
the "sweet deal he had made with the Government." S ee Appellee's Br. at 11. However, we are unpersuaded b y the logic of this explanation.

It goes without saying that persons in prison would prefer not to be there and may, therefore, avail th emselves of an opportunity to reduce the amount of time they have to spend in prison whether or not they are receivin g 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 incarcerat ion. It also should go without saying that any prosecutor, regardless of his or her experience, ought to appre ciate that when a cooperating witness is asked about death thr eats that he or she has received while in prison, a reas onable juror might readily assume that the defendant is be hind such threats. Common sense would cause a juror to wonder why else the prosecutor would ask such a que stion.

4Accordingly, 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 sen se that
most trial courts instruct them to utilize while de liberating.

Fed. R. Evid. 401 defines "relevant evidence" as fo llows:

evidence having any tendency to make the exi stence of any fact that is of consequence to the deter mination of the action more probable or less probable th an it would
be without the evidence.

Despite the instant prosecutor's assertion to the c ontrary, we are hard pressed to see how, under the circumsta nces here, evidence that an inmate received death threat s that are no way connected to a defendant on trial is rel evant during the course of that defendant's trial.

This inquiry may have had some highly attenuated, theoretical relevance, because it bolstered the pro secutor's argument that the witness would rather have been ou tside of prison than inside of it. However, even assuming that such an argument would allow these questions to sur vive scrutiny under Rule 401, they still would fail the balancing test imposed by Fed. R. Evid. 403. The probative va lue is so minimal and the risk of prejudice so certain that i t fails that test. The district court correctly sustained t he 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. den ied, 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. 1 001 (1990). See Appellee's Br. at 11-12. However, our h oldings
in those cases do not ameliorate our concern over w hat the prosecutor did here. In both Vastola and Frankenber ry, 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. Al though participation in that program can, under some circumstances, unfairly suggest a defendant's dangerousness to a jury, that was not the situation in

5either of those cases. Moreover, in Frankenberry, e vidence

of the witness's participation in the Witness Prote ction Program was relevant to explain to the jury that th e Government was financially aiding the witness and conferring a benefit upon him. Thus, it was not onl y appropriate for this testimony to be elicited by th e prosecutor, it was advisable and perhaps even requi red. We emphasized that "[t]he government explains that it elicited [the witness's] testimony . . . because it was rele vant that it was financially aiding him and to rebut any inferen ce that the government was buying his testimony." Id. at 23 9. In Vastola, we cited Frankenberry and noted that even when such evidence is admissible, it "is a matter that m ust be handled delicately." 899 F.2d at 234. The circumsta nces of this prosecution fell short of the mark needed to j ustify eliciting testimony from which a jury would infer a defendant's dangerousness.

Nevertheless, for the reasons stated by the distric t court, we do not believe that this line of questioning sup ports the defendant's request for a new trial. As noted above , the trial judge immediately gave a strong curative instructio n 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 strong est of
curative instructions remains insufficient to"unrin g" the bell, we do not believe that McCoy's testimony is s uch that any prejudice that resulted from it was not elimina ted by the district court's immediate, direct, and insight ful action. "We must presume that a jury will follow an instruc tion to disregard inadmissible evidence . . . unless there is an overwhelming probability that the jury will be unab le to follow the court's instructions, and a strong likel ihood that the impact of the evidence would be devastating to the defendant." U.S. v. Thornton, 1 F.3d 149, 157 (3d C ir. 1993).

Moreover, after the question was asked, and the cur ative instruction given, the prosecutor did not return to the subject nor attempt to exploit McCoy's answer to th e questions. The district court did not conclude that the prosecutor engaged in intentional misconduct in ask ing these questions and this record does not cause us t o

6disagree with that conclusion. Nevertheless, we wou ld 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 testi mony 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 th e judgment of conviction.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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