1 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 12

- 1773

UNITED STATES OF AMERICA

v. MOHIT VOHRA, Appellant

On Appeal from the United States District C o urt f or th e Eastern District of Pennsylvania (D. C. No. 2

- 0 9

- cr - 0 05 4 6

- 001 ) District Judge : Honorable Michael M. Baylson

Submitted under Third Circuit LAR 34.1(a)

on May 9, 2013 Before: SLOVITER , FUENTES , and ROTH, Circuit Judges

(Opinion filed : August 9, 2013 )

O P I N I O N

ROTH, Circuit Judge : Mohit Vohra appeals his conviction of one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(b) and twelve substantive co unts of money2

laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). For the reasons that follow, we will affirm the District Court’s judgment of conviction.
I. Background 1 On March 21, 2009, Vohra was pulled over while driving a tractor

- trailer on a h ighway near St. Louis, Missouri. After approximately 90 kilograms of cocaine with an estimated street value of $2 million was discovered in the tractor , he agreed to assist the government by making a controlled delivery of the cocaine to the shipment’s in tended recipient, an individual named Raj located in Philadelphia, Pennsylvania. Later in the trip, it was discovered that Vohra was also transporting approximately 1,300 pounds of marijuana in the trailer with an estimated street value of $1 million.
A ge nts of the Drug Enforcement Administration (DEA) accompanied Vohra for the remainder of the trip from St. Louis to Philadelphia. During the trip, Vohra spoke to Raj via telephone several times. The DEA recorded the calls . During one call, Voh r a and Raj had an exchange in Punjabi, which was translated as follows :

Raj: Okay. How many were [unintelligible] last time . . . two or three? Vohra: Two. Raj: Those were two, right? Vohra: Hmm. Raj: Now are these three? Vohra: Hmm. Raj: Are these smaller or bi gger than those? Vohra: Bigger. Raj: Bigger, okay.

1 We write primarily for the parties, who are familiar with the facts of this case. Therefore, we will set forth only those facts necessary to our analysis.3

After delivering the cocaine to Raj , Voh r a was arrested and charged with two counts of narcotics trafficking, twelve substantive counts of money laundering, and conspiracy to commit money laundering. He plead ed guilty to the narcotics offenses and proceeded to trial on the remaining charges. At trial, the government presented evidence that Vohra had engaged in narcotics trafficking and that he had deposited large sums of money in to his bank account over a nine month period

– in amounts that greatly exceeded the income he reported on his taxes. The discussion between Voh r a and Raj was admitted into evidence , ov er Vohra’s objection , to further show Vo h r a’s involvement in narcotics trafficking and to support the inference that he had laundered the proceeds of illicit transactions. Raj was not tried with
Vo h r a, nor was Raj available to testify at trial. During closing arguments, counsel for Vohra’s co

- defendant Jaspreet Kaur
sug gested to the jury that it was common knowledge that drug dealers do not deposit their money in the bank. On rebuttal, the prosecutor stated: “ Contrary to what Mr. Miller [Kaur’s attorney] says, my experience is, and perhaps yours is that, indeed, drug dealers do deposit money in thei r bank accounts. They have to do something with it. Putting it under their pillow isn’t going to do anything.” Vohra ’s motion for a mistrial base d on the prosecutor’s statement was denied. The District Court did not issue a limiting instruction to the jury concerning the statement

. Vo hra was convicted

. This appeal followed.4

II. Discussion 2
A. Hearsay Vohra’s first claim on appeal is that the taped conversation between him and Raj was improperly admitted at trial. We exercise plenary review of a dist rict court’s
evide ntiary ruling s insofar as they involve an interpretation of the Federal Rules of Evidence ; however, a district court’s decision to admit or exclude evidence, if based on a permissible interpretation of those rules, is reviewed for an abus e of discretion. United States v. Saada , 212 F.3d 210, 220 (3d Cir. 2000)

. The taped conversation between Vohra and Raj consists of two portions: Vohra’s statements and Raj’s statements. Vohra concedes that his own statements were admissible as admis sions under Federal Rule of Evidence 801(d)(2)(A). The District Court admitted Raj’s statements on two independent grounds: (1) as non - hearsay admissions of a co

- conspirator under Federal Rule of Evidence 801(d)(2)(E), and (2) as

non - hearsay statements t hat placed Vohra’s admissions in context . The government has conceded that the co

- conspirator exception is an invalid basis for admitting the conversation because Vohra was no longer a co

- conspirator once he began cooperating with the DEA. See United Sta tes v. Bobb , 471 F.3d 491, 498 (3d Cir. 2006) ( noting that the co

- conspirator exception to the hearsay rule is applicable only when both the defendant and the declarant are participating in the same conspiracy).

2 The District Court had jurisdiction pursuant to 18 U. S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.5

Although the co - conspirator hearsay exclu sion of Rule 801(d)(2)(E) is inapplicable , the second basis for admission was proper. Raj’s statements were admissible as non - hearsay evidence for the purpose of contextualizing Vohra’s
admissions

. See United States v. Hendricks , 395 F.3d 173, 1 84 (3d Ci r. 2005) (admitting unavailable declarant’s statements to put defendant’s statements “into perspective and make them intelligible to the jury and recognizable as admissions” ) ; see also United
States v. Davis , 890 F.2d 1373 , 1380 (7th Cir. 1989 )

. Vohra a dvances an additional argument that the District Court erred by admitting Raj’s statements to establish the truth fulness of those statements . This argument is misplaced. Although Vohra is correct that Raj’s statements were inadmissible to
establish the t ruth of the matter asserted, he overlooks the fact that the evidence was
nonetheless admissible to provide context to Vohra’s admissions under the rule from
Hendricks

. Without Raj’s statements, Vohra’s admissions would have been meaningless.
We therefore find no abuse of discretion in the admission of the taped call between Vohra and Raj. Moreover, even if Vohra’s evidentiary argument w ere meritorious , it would not affect the outcome of this case because any error was harmless. Non

- constitutional error is harmless when “it is highly probable that the error did not contribute to the judgment.” United States v. Dispoz

- O

- Plastics, Inc. , 172 F.3d 275, 286 (3d Cir. 1999) (citation and internal quotation marks omitted). “High probability requires that the cou rt possess a sure conviction that the error did not prejudice the defendant. ” United States v. Zehrbach , 47 F.3d 1252, 1265 ( 3d Cir. 1995) (citation and internal quotation marks6

omitted)

. Our harmless error analysis requires an examination of “the scope of the comments and their relationship to the proceedings, the extent of any curative instructions, and the strength of the evidence against defendants.” Dispoz

- O

- Plastics , 172 F.3d at 286. Here, Raj’s statements were admitted to show that Vohra was in volved in narcotics trafficking on multiple occasions , thus permitting the jury to infer that he was laundering the proceeds of illicit transactions

. While the conversation between Vohra and Raj was certainly helpful to prove the government’s case , there was ample additional evidence presented at trial showing that Vohra was guilty of money laundering and conspiracy to commit money laundering. M ost notably , the government presented evidence that Vohra was caught transporting approximately 90 kilograms of cocaine and 1,300 pounds of marijuana

— an amount that was un likely to be entrusted to a first

- time courier

— and that his bank accounts reflected num erous suspicious deposits that greatly exceeded his reported income

. Cf. United States v. Hardwick , 544 F.3d 565, 574 (3d Cir. 2008) (holding that the improper admission of co - defendants’ proffer statements implicating the defendant was harmless in light of the overwhelming evidence of the defendant’s guilt ). Therefore, any error associated with admitting the co nversation into evidence was harmless.
B. Vohra’s Motion for a New Trial Vohra also asserts that the District Court should have granted him a new trial based on the statement made by the prosecutor on rebuttal during closing arguments. Our review of a m otion for a new trial is plenary. United States v. Liburd , 607 F.3d 339, 3427

(3d Cir. 2010). However, not all prosecutorial misconduct will require a new trial. Id. at 344. W e must determine whether the misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process in light of the entire proceeding.” United States v. Morena , 547 F.3d 191, 194 (3d Cir. 2008) (internal quotations omitted). Therefore, even if the government’s conduct was improper, we must aff irm the conviction if the error was harmless. United States v. Vosburgh , 602 F.3d 512, 540 (3d Cir. 2010). Looking to the three

- prong harmless error analysis discussed above , even if we assume that the prosecutor’s statement w as improper, any error was harmless. The prosecutor’s statement was a direct response to Kaur’s attorney’s appeal to the jury’s

common sense and was limited in scope. Cf. Dispoz

- O

- Plastics , 172 F.3d at 288 ( prosecutor’s appeal to jury’s common sense regarding credibility of witne sses was not improper). I n light of the other evidence presented at trial that strongly suggested Vohra’s guilt , we find that any error attributable to the prosecutor’s statement w as harmless

. 3
III. Conclusion For the foregoing reasons, we will affirm th e District Court’s judgment of
conviction.

3 Kaur also raised this issue in his appeal. We rejected h is claim for the same reasons articulated above. See United States v. Kaur , No. 12

- 1795, 2013 WL 1749523, at *3 (3d Cir. Apr. 24, 2 013).