1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-3-1997

United States v. Murray

Precedential or Non-Precedential:

Docket 96-7072

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http://digitalcommons.law.villanova.edu/thirdcircuit_1997/3
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 96-7072 

____________ 

UNITED STATES OF AMERICA 

v. 

MICHAEL MURRAY, 

Appellant 

____________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 92-00200-04) 

____________________ 

Argued: August 12, 1996 

Before: GREENBERG and ALITO, Circuit Judges, 

and FISHER, Senior District Judge * 

(Opinion Filed: January 3, 1997) 

____________________ 

 OPINION OF THE COURT 

 

 DAVID A. RUHNKE (Argued) 

 RUHNKE & BARRETT 

 47 Park Street 

 Montclair, NJ 07042 

Attorney for Appellant

 DAVID M. BARASCH 

 UNITED STATES ATTORNEY 

 WILLIAM A. BEHE (Argued) 

 Assistant U.S. Attorney 

 Federal Building 

 228 Walnut Street 

 Harrisburg, PA 17108 

 

 Attorneys for Appellee

 

* The Honorable Clarkson S. Fisher, Senior United States 

District Judge for the District of New Jersey, sitting by 

designation. 
ALITO, Circuit Judge: 

 Appellant Michael Murray was convicted following a jury 

trial of an intentional killing in furtherance of a continuing 

criminal enterprise ("CCE") in violation of 21 U.S.C. § 

848(e)(1)(A); conspiracy to distribute in excess of five 

kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 

841(a)(1); and distribution of and possession with intent to 

distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In 

this appeal, Murray argues that the district court erred in (1) 

admitting testimony under Fed. R. Evid. 404(b) and 403 that he 

had committed a murder not charged in the indictment; (2) 

admitting under Fed. R. Evid. 608 evidence supporting the 

credibility of the only testifying eyewitness to the events 

immediately preceding the charged murder; (3) denying Murray’s 

motion to excuse for cause a juror who had read a newspaper 

article about the case; and (4) denying Murray’s motion to 

suppress the testimony of a jailhouse informant. We hold that 

the district court erred under Fed. R. Evid. 404(b) and 403 in 

admitting testimony about the uncharged murder and in admitting 

evidence about specific instances of conduct supporting the 

credibility of the eyewitness, in contravention of Fed. R. Evid. 

608(b). We conclude that these errors require reversal of 

Murray’s murder conviction but that they are harmless with 

respect to his convictions on the other charges. 
3

I. 

 Murray was indicted and arrested in August 1992. (App. 

13) The superseding indictment on which he was tried alleged that 

Murray (whose "street name" was "Solo") and co-defendants 

Jonathan Ray Bradley ("Fresh" or "Johnny Fresh") and Emanuel 

Harrison ("Paradise") intentionally killed Juan Carlos Bacallo on 

January 28, 1992, while engaging in and working in furtherance of 

a drug distribution CCE. (App. 64) Bradley was alleged to be the 

leader of the drug ring, which imported cocaine from New York 

City in cookie boxes for sale in the 1400-1600 block of Market 

Street in Harrisburg. (App. 65-66) 

 In August 1993, the government filed notice that it 

would seek the death penalty against Murray. (App. 73-75) See

United States v. Bradley, 880 F. Supp. 271 (M.D. Pa. 1994) 

(addressing death penalty issues). In June 1994, on the last day 

scheduled for jury selection, the parties informed the court that 

they had reached a plea agreement, and two days later, Murray, 

Bradley, and Harrison entered guilty pleas. (App. 88, 107-11) 

Murray’s plea agreement was designed to result in an offense 

level of 40 (a base offense level of 43 with a three-level 

reduction for acceptance of responsibility), which would have 

produced a sentence in the neighborhood of 25 years’ 

imprisonment, and the agreement provided that he could withdraw 

the plea if for any reason his offense level was ultimately 

calculated to be higher than 40. (App. 108). Because the 
4

district court judge did not believe that Murray was entitled to 

a reduction for acceptance of responsibility due to his failure 

to show remorse, she held that Murray’s offense level would be 

43, which would have required a life sentence. (App. 50) Murray 

then moved to withdraw his plea, and the court granted the 

motion. (App. 52) Murray sought reconsideration of the death 

penalty authorization, and a few days before jury selection was 

scheduled to begin, the government advised that the Attorney 

General had withdrawn that authorization. (App. 337). Before 

this time, the government had been planning to use testimony 

concerning the uncharged murder during the sentencing phase as 

part of its argument in favor of the death penalty, but after the 

death penalty authorization was withdrawn, the government decided 

to attempt to introduce this testimony during the guilt phase of 

Murray’s trial. See Govt. Br. at 33 n.2. (App. 78, 85). 

 Murray's trial lasted four days. The government 

offered strong evidence concerning his drug distribution 

activities, and we will not recount that evidence here. However, 

because of its relationship to Murray's two key evidentiary 

arguments, we will summarize the evidence relating to the murder. 

The government presented evidence that Bacallo, the murder 

victim, had been working for Bradley’s drug ring as a streetlevel dealer and that he owed Bradley money for drugs he had been 

"fronted." (App. 786). Marguerite King, Bacallo’s girlfriend, 

testified that a week before he was murdered Bacallo approached 
5

Bradley to inform him that he was quitting the drug business and 

that Bradley responded by pointing a sawed-off shotgun at 

Bacallo’s head and telling him that "once you are in this 

business, you never get out." (App. 787, 791) King admitted that 

she had lied to the police when she was questioned shortly after 

the murder, explaining that she had been afraid to tell the truth 

because Harrison was with her. (App. 788-89) 

 Jay Williams testified that on the night of the murder, 

Bacallo, Harrison, and he went to a bar even though Bacallo did 

not want to go. (App. 803-04) Williams said that he and Harrison 

asked Bacallo if the reason he did not want to go the bar was 

because "you don’t got Fresh’s money," but Bacallo denied this. 

(App. 803-04) Williams testified that inside the bar Bradley and 

Murray "smack[ed]" Bacallo repeatedly and that Bacallo, Bradley, 

Murray, and Harrison left the bar and got into a taxicab because, 

as Bacallo said, "[t]hey want me to do something for them." 

(App. 805-06) Williams admitted that at the time he testified he 

was incarcerated for drug trafficking, that he had lied shortly 

after the murder when he gave the police a statement (in which he 

denied any knowledge of the anything relating to the murder), and 

that he had been smoking marijuana and drinking alcohol on the 

night of the murder. (App. 799, 807, 811-12) 

 Richard Brown, a taxicab driver who was "friends" with 

Murray, testified that he picked up Bacallo, Murray, and Harrison 

(but not Bradley) in his cab on January 28, 1992, and that, at 
6

Murray's direction, he drove them to a deserted part of State 

Farm Road in Susquehanna Township. (App. 717-19) He gave the 

following account of what happened next. Murray told Brown to 

pull over and instructed Bacallo to get out of the car because 

"he was going to make him walk." (App. 719) Harrison, whom Brown 

had noticed was carrying a sawed-off shotgun beneath his coat, 

remained in the car. (App. 719) Shortly after Murray and Bacallo 

walked away from the car, Brown heard gunshots. (App. 720) A few 

seconds later, Murray got back into the car, carrying a .45 

caliber pistol, and said something to the effect of "that is what 

someone gets for being in violation." (App. 720) "[S]cared as 

hell," Brown drove Murray and Harrison back into town and then 

returned home. (App. 721-22) When he got home, Brown told 

Stephanie Stewart, with whom he was living at the time, what had 

happened. (App. 722) 

 Brown admitted that he had been working as an informant 

for the Harrisburg Police Department at the time of the murder, 

but that he had not reported what he had seen in the early 

morning of January 28, 1992, until July or August of that year. 

(App. 723) Brown explained that he waited so long "[b]ecause 

quite frankly, I was afraid, not only for myself, but for the 

people I cared about the [sic]. My mother was dying of cancer. 

I didn’t want any accidents to happen to any of them. I cared 

about my children." (App. 723) Brown admitted that he had been 

using marijuana and cocaine for 27 years and that he had been 
7

convicted of cocaine possession and theft of services. (App. 

725) 

 Stewart testified that when Brown returned home the day 

of the murder he told her that "I just saw Solo kill someone." 

(App. 767-68) She stated that when she read about the murder in 

the newspaper she asked Brown, "Is this what you were talking 

about?" and that he replied in the affirmative. (App. 776) 

 After Murray cross-examined Brown, the government 

called Lt. John Goshert, a Harrisburg police officer, to testify 

in support of Brown’s reliability. Murray objected to Goshert’s 

testimony on the ground that "the character of [Brown] for 

truthfulness" had not been "attacked by opinion or reputation 

evidence or otherwise," Fed. R. Evid. 608(a), and that even if it 

had, Lt. Goshert’s testimony violated Fed. R. Evid. 608(b)’s 

proscription on proof of specific instances of conduct by 

extrinsic evidence. (App. 822, 826-29) The court overruled 

Murray’s objection. (App. 829) 

 Lt. Goshert testified that, as the officer in charge of 

the Harrisburg police drug enforcement unit, he had utilized 

Brown as a confidential informant since 1988. (App. 834-36) Lt. 

Goshert stated that in his opinion Brown was "extremely reliable" 

in providing accurate information. (App. 836) Lt. Goshert 

explained that the Harrisburg police had "made" "[i]n excess of 

65" cases and had obtained "numerous" search warrants as a result 

of Brown’s services as an informant. (App. 836) 
8

 Robert McCallister, a Susquehanna police officer, 

testified that he discovered Bacallo’s body on the morning of 

January 28, 1992, and found seven shell casings nearby. (App. 

648, 651-52) James Rottmund, a ballistics expert, testified that 

all seven casings were from the same .45 caliber gun and that the 

shots were fired from a distance of at least five feet. (App. 

683-84) Dr. Isadore Mihalakis, a medical examiner, testified that 

Bacallo had suffered eight gunshot wounds: one to the right 

thigh, three to the right buttock, two to one hand, one to the 

other wrist, and one to the head. (App. 702-05, 707) Dr. 

Mihalakis testified that all eight wounds (which, he said, might 

have been caused by seven shots) were inflicted from behind, that 

the shot to the head was the final one, and that it occurred with 

Bacallo in a prone position. (App. 705, 710) He concluded that 

the manner of death was homicide. (App. 713) 

 Randy Drawbaugh and Sean Proffit, both jailhouse 

informants, testified as well. Drawbaugh testified that Murray 

had told him that "he shot a guy named Carlos" because "Carlos" 

owed him money. (App. 851-52) Proffit testified that Murray told 

him that he was going to "get" all of the witnesses against him 

when he was released from jail and, in particular, that "there 

was a certain witness named Juice [Xenophon Singleton] that he 

was going to get and throw his baby off the roof of a building." 
9

 (App. 870) Drawbaugh and Proffit were impeached with their 

criminal records.1

 Murray’s Rule 404(b) and 403 arguments are based on the 

testimony of Jemeke Stukes ("Quest"). Stukes testified that, 

while in New York City, he met Bradley, who introduced him to 

Murray. In August 1991, Stukes said, he went to Harrisburg to 

sell cocaine at Bradley’s invitation. (App. 463-64) Stukes was 

indicted and arrested at the same time as Murray and pled guilty 

in January 1993 to conspiracy to distribute cocaine, for which he 

was sentenced to 24 months’ imprisonment. (App. 19, 449) At 

the time of Murray’s trial, Stukes had recently completed a 

combined 38 months of imprisonment on the federal conviction and 

related state charges. (App. 446-50) Stukes testified that 

Murray committed an uncharged murder in New York City in 1991. 

According to Stukes, in the middle of August 1991, "[a] guy by 

the name of Howie came by Mr. Bradley’s store in Manhattan and 

said his little cousin was having problems with this guy," 

referring to a dispute over drug territory. (App. 457) Bradley 

told Howie that "me and Solo will take care of it," and he asked 

Stukes to "go along." (App. 457) Stukes explained that "Fresh 

[Bradley] had me go along to see how his reputation is 

established because, you know, he has a rep in New York as being 

 

11. Prior to trial, Murray had moved to exclude Proffit’s 

testimony on the ground that Proffit’s conversation with him 

violated Massiah v. United States, 377 U.S. 201 (1964), but after 

a pretrial hearing, the court denied the motion. (App. 412) 
10

a shooter, and, you know, a fairly large drug dealer." (App. 

458) On a Sunday afternoon, "Howie" drove Bradley, Murray, and 

Stukes in a van to a housing project at 169th Street and 

Washington Avenue in the Bronx to look for a "heavy-set" 

Panamanian man. (App. 459) Stukes testified that Bradley and 

Murray wrapped their faces in towels so that only their eyes were 

visible and that all three of them left the van while Howie 

remained in it. (App. 459) Then, according to Stukes, "Solo 

[Murray] went up to the guy" while "Fresh [Bradley] stood across 

the street." (App. 459) Stukes testified that "Solo went up to 

the guy and pumped four slugs in his chest. And as he was 

running back towards the van, Fresh, you know, had his gun out 

and he sprayed the building, you know, fired shots at the 

building because there was people standing out there." (App. 

460) Stukes fled the scene in a taxicab and did not report the 

incident to the police. (App. 461, 463) Shortly thereafter, 

Stukes went to Harrisburg with Bradley and Murray. 

 A New York City Housing Police report shows that a man 

named Jorge Tesis was shot and killed on Sunday, July 21, 1991, 

at the location indicated by Stukes. (App. 328) Two other 

individuals were also shot but were not seriously injured. (App. 

328) The report describes the alleged perpetrator as a 5'8" tall 

20-year old; Murray was 18 or 19 years old at the time and is 6' 

tall. (App. 328, 822) According to the report, a "witness states 
11

male walked up to [the victim] and opened fire with a gun 

striking victim in the stomach and chest." (App. 329) 

 Murray was convicted on all counts. (App. 57) A 

sentence of life imprisonment was imposed, and Murray appealed. 

II. 

 Murray challenges the admission of Stukes’ testimony 

under both Fed. R. Evid. 404(b) and Fed. R. Evid. 403. We 

address his Rule 404(b) argument first. 

 A. As a general rule, "all relevant evidence is 

admissible," Fed. R. Evid. 402, and evidence is "relevant" if its 

existence simply has some "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." Fed. R. Evid. 401. However, Rule 404(b) 

restricts the admission of one category of relevant evidence. 

Rule 404(b) provides in part as follows: 

Evidence of other crimes, wrongs, or acts is not admissible to 

prove the character of the person in order to show that 

he acted in conformity therewith. It may, however, be 

admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident. 

Thus, in order for "[e]vidence of other crimes, wrongs, or acts" 

to be admissible, it must be relevant to prove something other 

than "the character of the person in order to show that he acted 

in conformity therewith." In this case, therefore, Rule 404(b) 
12

barred Stukes' testimony if it was relevant only to permit the 

jury to infer that Murray had a homicidal character and that this 

character found expression in the murder of Bacallo. But if 

Stukes' testimony was relevant to prove anything else, Rule 

404(b) did not preclude its admission. On appeal, Rule 404(b) 

rulings "may be reversed only when they are clearly contrary to 

reason and not justified by the evidence." United States v. 

Balter, 91 F.3d 427, 437 (3d Cir. 1996)(quotation omitted). See 

also United States v. Himelwright, 42 F.3d 777, 781 (3d Cir. 

1994). 

 The admission of evidence that is allowed by Rule 

404(b) is not disfavored, but trial judges need to exercise 

particular care in admitting such evidence. This is so for at 

least two reasons. First, the line between what is permitted and 

what is prohibited under Rule 404(b) is sometimes quite subtle. 

Second, Rule 404(b) evidence sometimes carries a substantial 

danger of unfair prejudice and thus raises serious questions 

under Fed. R. Evid. 403. Therefore, it is advisable for a trial 

judge to insist that a party offering Rule 404(b) evidence place 

on the record a clear explanation of the chain of inferences 

leading from the evidence in question to a fact "that is of 

consequence to the determination of the action." Fed. R. Evid 

401. And it is likewise advisable for the trial court to place 

on the record a clear explanation of the basis for its ruling on 

the admission of the evidence. Not only do these procedures help 
13

to ensure that sensitive Rule 404(b) rulings are made with care 

(and thus to diminish the likelihood that these rulings will 

result in reversals), but these procedures greatly assist the 

process of appellate review. Consequently, although the language 

of Rule 404(b) does not require such procedures, our cases have 

emphasized their usefulness. See Himelwright, 42 F.3d at 782; 

United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992). 

 Unfortunately, these procedures were not followed here. 

 The government never provided a clear explanation on the record 

of the chain of inferences on which it was relying.2 Its best 

explanation appears to have occurred at the charge conference, 

 

2. The government contends that Murray never objected under Rule 

404(b) or Rule 403 to the introduction of Stukes’ testimony. 

However, it appears to us that Murray did raise both of these 

issues. The court opened the August 10, 1995 hearing by making 

its Rule 403 ruling (App. 377), which indicates that Murray had 

argued this point in chambers. In addition, Murray repeated the 

objection on the record, if somewhat obliquely. See App. 382 

("Your Honor, I would also point out that as the Court has noted, 

it is highly prejudicial.") Shortly thereafter, the government 

referred to the court’s off-the-record discussion of the Rule 403 

issue. (App. 385) At an August 14 hearing, Murray’s counsel 

noted that "[m]ost of my argument on the 404(b) material, the New 

York murders, was said in chambers off the record." (App. 818) 

Later, when the court asked Murray’s counsel to draft a limiting 

instruction for Stukes’ testimony, he replied that "I am not 

quite sure what the relevance was, and it was my contention that 

it was not relevant." (App. 820) While it is true that much of 

Murray’s ire with respect to Stukes’ testimony was directed at 

the fact that he did not receive notice that it would be used in 

the government’s case-in-chief until the day before trial 

(because of the government’s last-minute change in strategy 

precipitated by the withdrawal of the death penalty 

authorization), we are satisfied that Murray made it sufficiently 

clear that he was objecting to its relevance under Rule 404(b) 

and to its unfair prejudicial effect under Rule 403. Fed. R. 

Evid. 103(a). Cf. United States v. Long, 574 F.2d 761, 766 (3d 

Cir.), cert. denied, 439 U.S. 985 (1978). 
14

when the prosecutor stated that Stukes’ testimony "wasn’t just 

[offered for] identity. Role in the organization, common scheme, 

plan, a number of different reasons." (App. 957) The 

prosecution provided no further explanation beyond these 

conclusory statements, and the district court similarly gave 

little explanation for its ruling admitting this highly sensitive 

evidence. The district court's most complete on-the-record 

explanation appears to have occurred during the charge to the 

jury when it said only that the evidence was admitted "for the 

very limited purpose to show identity, role in the conspiracy, a 

common scheme or plan," and cautioned that it was not admissible 

to prove character. (App. 995-96) We have searched the record 

but have been unable to find anything other than these conclusory 

assertions to support the admission of Stukes’ testimony 

regarding the uncharged New York murder. 

 We have examined each of the grounds offered by the 

prosecution and accepted by the trial judge for the admission of 

this testimony, and even under the highly deferential standard of 

review that we generally apply to a trial judge's Rule 404(b) 

rulings, we believe that the admission of this evidence was 

improper. The government’s principal Rule 404(b) argument seems 

to be that Stukes’ testimony was relevant to show Murray’s role 

in the conspiracy. While the government's brief does little to 

flesh out this argument, we perceive the argument to run as 

follows: Murray murdered the victim in New York City at the 
15

behest of the CCE charged in the indictment; from this fact, the 

jury could infer that Murray was the CCE's designated "shooter"; 

and from this fact, the jury could infer that the shooting of 

Bacallo, which was committed in the interests of the Bradley CCE, 

was performed by Murray. 

 This theory, however, is undermined by the absence of 

any evidence that the New York murder about which Stukes 

testified was in any way related to the charged CCE. On the 

contrary, it appears from Stukes’ testimony that the murder arose 

out of a dispute between the cousin of a friend of Bradley’s 

("Howie") and the New York victim over drug sales in New York 

City. The government has not directed our attention to any 

evidence that Howie, his cousin, or the New York victim were 

involved in the CCE described in the indictment or that the 

dispute with the New York victim had anything to do with the 

activities of that CCE, whose drug sales took place in 

Harrisburg. (App. 65-66) Thus, evidence that Murray was a 

triggerman in the New York murder does not tend to show that he 

performed the same role in the Harrisburg CCE, and consequently 

this evidence does not seem to be admissible under Rule 404(b) to 

show his role in the charged CCE.3

 

3. The government might conceivably have argued, not that the 

New York murder showed that Murray played the role of the CCE's 

designated killer, but that he played the role of Bradley's 

personal killer. But even if the government had made this 

argument, the legitimate probative value of this evidence would 

have been substantially outweighed by the danger of unfair 

prejudice for essentially the reasons set out in part IIB of this 

opinion. 
16

 The absence of evidence that the New York murder was 

related to the CCE charged in the indictment also dooms the 

government's argument that evidence of the New York murder was 

admissible because it and Bacallo’s murder were committed on the 

basis of a common plan or scheme. As we explained in Government 

of the Virgin Islands v. Pinney, 967 F.2d 912, 916 (3d Cir. 

1992), "[o]rdinarily, when courts speak of ‘common plan or 

scheme,’ they are referring to a situation in which the charged 

and the uncharged crimes are parts of a single series of events." 

 In this case, there is no evidence that the two killings were 

planned together or that they involved a common design. Cf. 

United States v. Baker, 82 F.3d 273, 276 (8th Cir. 1996) 

(admitting evidence that the defendant police officer had 

previously employed a "remarkably similar" extortion scheme in 

which "a motorist is stopped for speeding, a firearm is 

discovered, and the motorist is given the choice of facing 

charges or ‘working it out’ with Baker").4 

 

4. The same is true with respect to the government's suggestion 

on appeal that evidence of the New York murder was admissible to 

establish the existence of the charged CCE and Murray's 

membership in it. See Govt. Br. at 29. Since there was no 

evidence that the New York murder was committed as part of the 

charged CCE, Murray's commission of that murder does not tend to 

show either the existence of that enterprise or Murray's 

membership. 

 Another related argument advanced by the government on appeal 

is the contention that the New York murder showed Murray's motive 

for the Bacallo murder, "that is to advance the interests of the 

Continuing Criminal Enterprise." Govt. Br. at 35. Apparently, 

the government's theory is that the New York murder was relevant 

to show Murray's membership in the CCE and thus to show that he 

had a motive for the Bacallo killing, which furthered the CCE's 
17

 We also see no merit in the government's argument in 

the district court that proof of the New York murder was 

admissible to prove "identity" because that murder was "a 

signature killing" and because Bacallo’s murder bore the same 

signature. (App. 820) "The evidence concerning the manner in 

which the two alleged crimes were committed here was neither 

sufficiently detailed nor significantly unusual to permit any 

inference that the perpetrator of the second [crime] was the same 

perpetrator of the first." Pinney, 967 F.2d at 916. The New 

York murder was committed during the day on a public street at 

the spot where the victim was found. The shooting occurred in 

the presence of bystanders, some of whom were apparently hit. 

Two gunmen participated. By contrast, the Harrisburg murder 

occurred at night in a secluded spot to which the victim was 

taken. There were no innocent bystanders, and it appears that 

only one gun was used.5

(..continued) 

interests. But the lack of evidence linking the New York murder 

to the CCE is fatal to this theory. 

5. On appeal, the government advances the apparently new 

argument that evidence of the New York murder was admissible to 

refute in advance a claim that Murray had made in a letter to the 

district court after the sentencing hearing that followed his 

abortive guilty plea. At that time, Murray claimed that Bacallo 

had lunged at him prior to the shooting, and the government 

maintains that evidence of the New York murder was relevant to 

show that the Bacallo killing was not accidental and was not 

committed in self-defense. Govt. Br. at 29-30. The government 

further argues that it "did not have to wait for rebuttal to 

offer this evidence." Id. at 30. Murray, however, did not 

testify, and the government does not claim that the defense ever 

suggested to the jury that the Bacallo murder was accidental or 

that it occurred in self-defense. Moreover, the government 

itself notes that the theory that the killing was accidental or 
18

 In sum, we do not believe that any of the grounds 

advanced by the prosecution and accepted by the district court at 

trial can justify the admission of the evidence of the New York 

murder under Rule 404(b). 

 B. Moreover, even if this evidence had some relevance 

to show something other than that Murray has a homicidal 

character, this relevance was so slight and the potential for 

unfair prejudice was so great that Fed. R. Evid. 403 demanded the 

exclusion of the evidence. 

 Rule 403 provides in pertinent part that "[a]lthough 

relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice 

. . . ." We review a Rule 403 ruling for abuse of discretion 

unless the district court failed to explain its ruling and "its 

reasons for doing so are not otherwise apparent from the record." 

 Himelwright, 42 F.3d at 781. 

 In this case, the district court's on-record 

explanation for its ruling was minimal. It appears that the 

district court conducted virtually all of its Rule 403 discussion 

off the record in chambers and that the sum total of its onrecord treatment of the issue is the conclusory statement that 

(..continued) 

in self-defense "was in stark contrast to the . . . nature of 

Bacallo's wounds." Id. at 9. Thus, without any suggestion by 

the defense that the killing was accidental or occurred in selfdefense, it is questionable whether the New York killing was 

relevant, and in any event its probative value to show absence of 

accident or self-defense was undoubtedly negligible. 
19

"[t]he Court recognizes that it is prejudicial, but it is also 

highly probative." (App. 377) 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. Cf. 

United States v. Sriyuth, 98 F.3d 739, 744 n.8 (3d Cir. 1996) 

("We take this occasion, once again, to remind the district 

courts of their obligation to perform this weighing process on 

the record. Although we are able to perform this balancing here, 

other cases may require remand to the court for such proceedings 

or even for a new trial."). 

 It should go without saying that evidence in a murder 

trial that the defendant committed another prior murder poses a 

high risk of unfair prejudice. Stukes' testimony concerning the 

uncharged New York murder informed the jury that Murray had shot 

at point-blank range a man with whom he had no personal conflict 

and whom he appears not to have even known. Evidence would have 

to possess significant probative value to avoid being 

substantially outweighed by the grave danger of unfair prejudice 

that this testimony carried. 

 In the previous section of this opinion, we reviewed 

all of the government's arguments as to how the evidence of the 

New York murder was relevant to prove something other than 

Murray's homicidal character, and we concluded that this evidence 
20

was not even relevant to show any of the permissible things 

mentioned by the government or the district court at trial. But 

even if the evidence of the New York murder had some relevance 

under one or more of these theories, its legitimate probative 

value was unquestionably slight. We will now again discuss all 

of the government's theories, but we will add a few comments 

about the government's best theory, i.e., that the proof of the 

New York murder was relevant to show Murray's role in the CCE. 

 As we previously noted, the government's theory 

apparently is that the evidence of the New York murder was 

relevant to show that Murray played the role of the CCE's killer, 

that the Bacallo murder was committed to serve the CCE's 

interests, and that therefore it could be inferred that Murray 

committed that murder. Even if there were some slight evidence 

that the New York murder was connected with the CCE charged in 

the indictment, the probative value of the testimony regarding 

the New York murder to show that Murray committed the Bacallo 

murder would still be small. Under the government's theory, the 

probative value of the evidence of the New York murder depends on 

the uniqueness of Murray's role as the CCE's "shooter." The 

events surrounding the New York murder, however, as recounted by 

Stukes, do not show that Murray played the unique and distinctive 

role of the CCE's killer. On the contrary, Stukes testified 

that Bradley "has a rep in New York as being a shooter," 

explained that Bradley brought him along to see how Bradley
21

established that reputation, and testified that Bradley "sprayed 

the building" with gunfire. (App. 458, 460) Accordingly, the 

testimony regarding the New York murder suggested at most that 

Murray was a shooter, not the shooter. Unless there were 

significant evidence linking the New York murder to the CCE, 

Stukes' account of the New York murder would appear to have 

little legitimate probative value.6 Accordingly, we hold that 

the district court abused its discretion in concluding that any 

legitimate probative value possessed by this evidence was not 

substantially outweighed by the danger of unfair prejudice. 

 We are unable to conclude that the district court’s 

Rule 404(b) and Rule 403 errors were harmless in relation to the 

murder charge. In order to do so, we would have to be persuaded 

that it is "highly probable that the evidence . . . did not 

contribute to the jury’s judgment of conviction." Government of 

Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir. 1993) 

(quoting United States v. Schwartz, 790 F.2d 1059, 1062 (3d Cir. 

1986)). While the jury might have convicted Murray of the murder 

without relying on Stukes’ testimony, we do not believe that the 

other evidence against him was so overwhelming as to render that 

conclusion "highly probable." There was only one eyewitness, and 

 

6. On redirect examination, Stukes was asked, "What was Mr. 

Murray’s role or function or reputation in your crew?" and Stukes 

responded that he was "[j]ust a shooter." (App. 522-23) The 

parties have not addressed the question whether this testimony, 

as opposed to Stukes' testimony concerning the New York murder, 

was properly admitted, and we therefore do not reach that 

question here. 
22

the jury might well have discounted or discredited his testimony 

based on his delay in reporting what he knew and his extensive 

history of drug use. Furthermore, as explained below, his 

credibility was improperly bolstered with testimony that was 

proscribed by Fed. R. Evid. 608. Many of the government’s other 

witnesses were similarly impeached on the basis of 

inconsistencies in their stories, their interest in cooperating 

with the prosecution, and their own drug use. Moreover, in its 

closing argument, the government emphasized Stukes’ testimony. 

The prosecutor said: 

[Stukes] was present in July of 1991 when this defendant gunned 

down an individual in New York, participated in a 

murder with Jonathan Ray Bradley of a drug dealer over 

drugs. Doesn’t that help establish that this defendant 

was part of this conspiracy whose role as Stukes said 

was the shooter, whose favorite weapon was a .45? 

This is not the trial of that incident in New York. This is not 

that trial. That evidence is offered to establish the 

reliability of all of the other information 

establishing this defendant as the killer of Juan 

Carlos Bacallao [sic] in this case. And if you credit 

that testimony of Stukes, doesn’t that help establish 

that this defendant is in fact a killer, the shooter, 

the executioner of Juan Carlos Bacallao [sic]? 

App. 915-16 (emphasis added). 

 We cannot disregard the possibility that the evidence 

of the New York murder "weigh[ed] too much with the jury and . . 

. so overpersuade[d] them as to prejudice one with a bad general 

record and deny him a fair opportunity to defend against a 

particular charge." United States v. Sampson, 980 F.2d 883, 886 

(3d Cir. 1992) (quoting Michelson v. United States, 335 U.S. 469, 
23

476-76 (1948)). We are thus constrained to reverse the judgment 

of conviction as to the murder charge contained in count two and 

to remand for a new trial on that charge to be conducted without 

evidence of the New York murder. In contrast, we believe that 

the erroneous admission of Stukes' testimony was harmless with 

respect to the drug charges contained in counts three and six of 

the superseding indictment. Murray's argument on appeal focuses 

exclusively on the murder conviction, and it is with respect to 

that charge that the jury could have been improperly influenced 

by Stukes' testimony; while evidence that Murray was a murderer 

might have contributed to his conviction for murder, such 

evidence is unlikely to have persuaded the jury that Murray was 

guilty of the drug charges. Moreover, the government presented 

substantially stronger evidence in support of the drug charges 

than in support of the murder charge, including testimony by many 

individuals who participated in the CCE or who were associated 

with participants as well as by a Harrisburg police officer who 

had made an undercover purchase of cocaine from Murray. We 

therefore conclude that it is "highly probable," Archibald, 987 

F.2d at 187, that Stukes' testimony did not contribute to the 

jury's conviction of Murray on the drug charges. 

III. 

 Murray argues that the admission of the testimony of 

Lt. John Goshert of the Harrisburg police department contravened 
24

Fed. R. Evid. 608. Murray timely and clearly objected to Lt. 

Goshert’s testimony. (App. 826-28) In relevant part, Rule 608 

provides: 

(a) The credibility of a witness may be . . . supported by 

evidence in the form of opinion or reputation, but 

subject to these limitations . . . (2) evidence of 

truthful character is admissible only after the 

character of the witness for truthfulness has been 

attacked by opinion or reputation evidence or 

otherwise. 

(b) Specific instances of the conduct of a witness, for the 

purpose of attacking or supporting the witness’ 

credibility . . . may not be proved by extrinsic 

evidence. 

 Murray’s first argument is that Brown’s character for 

truthfulness was not "attacked by opinion or reputation evidence 

or otherwise." We disagree. It is true that Murray did not 

present any opinion or reputation evidence to impeach Brown, but 

Murray’s counsel performed an extended and vigorous crossexamination of Brown that exposed Brown’s various illegal and 

sordid activities. Murray’s counsel questioned Brown about his 

long-standing and heavy drug use, his acquaintance with many 

Harrisburg drug dealers, his apparent under-the-table tax-free 

compensation for his work as an informant, his convictions for 

drug possession and theft of services, his unlawful carrying of 

an unlicensed firearm, his concealment of his drug use from his 

friend and contact in the Harrisburg police department, and his 

prior inconsistent statements to the grand jury. (App. 730-61) 

In view of this questioning, the opinion or reputation testimony 

given by Lt. Goshert fell within the language of Rule 608(a)(2) 
25

permitting the introduction of such evidence to support a 

witness’ credibility when his character for truthfulness has been 

"otherwise" attacked. See, e.g., United States v. Dring, 930 

F.2d 687, 692 (9th Cir. 1991), cert. denied, 506 U.S. 836 (1992); 

Fed. R. Evid. 608(a), Advisory Committee Notes ("evidence of 

misconduct, including conviction of crime," permits 

rehabilitation). 

 Murray’s more persuasive argument is founded upon Rule 

608(b)’s prohibition on proving specific instances of a witness’ 

conduct by extrinsic evidence. Once Brown’s character for 

truthfulness was attacked by Murray’s counsel, the government was 

entitled to attempt to rehabilitate Brown by calling a witness to 

give opinion or reputation testimony as to Brown’s character for 

truthfulness. But the government was not entitled to present 

"extrinsic evidence" of "specific instances" of Brown’s conduct 

"for the purpose of . . . supporting [his] credibility." Fed. R. 

Evid. 608(b). Lt. Goshert’s testimony was as follows: 

Q. Lieutenant Goshert, do you know an individual by the name of 

Richard Brown? 

 A. Yes, I do. 

Q. Have you ever used Mr. Brown as a confidential informant? 

A. On numerous occasions, the Harrisburg Police has utilized him. 

Q. As a result pf [sic] your using Richard Brown as a 

confidential informant, have you made any cases? 

 A. Yes, we have. 

 Q. Do you have an idea of approximately how many? 

 A. In excess of 65. 65, 66 something like that. 
26

Q. And search warrants, have you obtained search warrants based 

on his information? 

 A. Yes, we have numerous times. 

Q. How long a period of time have you been dealing with Mr. 

Brown? 

 A. Since 1988. 

Q. Based on your dealings with Mr. Brown and the cases you said 

that he has made, can you give us your opinion as to 

his reputation for being a reliable individual? 

 A. He is extremely reliable. 

 Q. In terms of the accuracy of the information? 

 A. Yes. 

App. 835-36. 

 This testimony, in our view, included "extrinsic 

evidence" of Brown’s character for truthfulness. United States 

v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989)("Extrinsic evidence 

is evidence offered through other witnesses rather than through 

cross-examination of the witness himself or herself."), cert. 

denied, 493 U.S. 1087 (1990). Murray argues that Lt. Goshert’s 

quantification of the cases that Brown had "made" constituted 

evidence of "specific instances" of Brown’s conduct and thus 

should have been excluded under Rule 608(b). The government 

contends that Lt. Goshert’s testimony was proper as foundation 

for his opinion as to Brown’s character for truthfulness. In 

support of the admission of Lt. Goshert’s testimony in the 

district court, the government argued that "[t]here has got to be 

some basis for the jury to know how he can give that opinion as 
27

to his reputation. And by letting the jury know they have a 

close working relationship over a period of time and that they 

have been involved in all of these incidents, then there is a 

basis for him giving that opinion." (App. 828) We agree that Lt. 

Goshert’s testimony that the Harrisburg police had used Brown as 

a confidential informant on "numerous occasions" since 1988 was 

necessary to establish that he had a basis on which to offer his 

opinion as to Brown’s character for truthfulness. However, his 

testimony that Brown had "made" 65 or 66 cases was more specific 

than can be justified as necessary to establish a foundation.7 

 United States v. Taylor, 900 F.2d 779 (4th Cir. 1990) 

presented a situation extremely similar to the instant case. In 

Taylor as in this case, the government’s fortunes depended in 

large part on the credibility of an informant, and the government 

called a law enforcement officer to testify as to the informant’s 

reliability. The officer testified that the informant "had acted 

as a buyer for the government on 15 to 18 drug buys," that he 

"had given reliable information in a particular case which 

resulted in the seller’s conviction," and that "several others 

either pleaded guilty or were convicted as a result of [the 

informant’s] testimony." Id. at 780-81. The court held that it 

was error to admit evidence that the informant’s testimony had 

 

7.7 The government prepared a chart detailing the particular 

instances where Brown had provided information to the Harrisburg 

police, but it conceded that the chart was not admissible under 

Rule 608(b). (App. 827) 
28

resulted in convictions in other cases. Id. at 781. Lt. 

Goshert’s testimony was substantially identical, and we conclude 

that its admission contravened Rule 608(b). 

 We are buttressed in this conclusion by the emphasis 

placed by the government on Lt. Goshert’s testimony in its 

closing argument. The government first told the jury that "[i]t 

was very important, wasn’t it, to hear from him?" and then 

argued: 

And Lieutenant Goshert, you think he would let any of his men or 

himself kick down some door with a search warrant on a 

drug raid or make an arrest on information from 

somebody that they didn’t think was reliable? Sixtyseven cases, Richard Brown has proven to be a reliable 

source of information for. They stake their lives on 

his testimony -- on his information. Does that give 

you some sense of how reliable he is? 

App. 913-14. This emphasis compounded the significance of the 

error in allowing Lt. Goshert’s specific-instance testimony and 

prevents us from concluding that the error was harmless.8 On 

retrial, the district court should limit the government to 

 

8. 8In United States v. Piva, 870 F.2d 753, 760-61 & n.9 (1st 

Cir. 1989), the court held that it was error to allow "a 

professional government witness [to] vouch[] for the credibility 

of an informant," but found that the district court rendered the 

error harmless by instructing the jury that: "Members of the 

jury, you have to make a determination whether you believe Mr. 

Pacheco [the informant]. Whether Mr. Costa believes him or not 

is not relevant to that, you have to make that determination, 

based on your own observations of Mr. Pacheco and only that, and 

your judgment as to whether he was telling the truth." No such 

curative instruction was given in this case. 
29

eliciting from Lt. Goshert only such testimony as is necessary to 

establish a foundation for his opinion.9

 

IV. 

 Murray also argues that the district court erred in 

denying his motion to disqualify for cause a juror who had read a 

newspaper article about the case. Immediately before trial 

commenced on August 10, 1995, the court asked whether any jurors 

had seen an article that appeared in the Harrisburg Patriot-News

 on August 2, 1995, entitled "Feds won’t seek death penalty for 

accused killer, 22." (App. 85) The article stated, inter alia, 

that Murray had previously pled guilty to the murder and had 

described it as "not a premeditation or contract killing. It was 

just a stupid unfortunate incident." (App. 85) 

 A juror named Mary Kling acknowledged that she had read 

the article and was subjected to voir dire by the court and by 

Murray’s counsel. (App. 413-15) Kling stated that all she could 

remember from the article was that the government had decided not 

to seek the death penalty and had not given any explanation for 

that decision, that Murray was accused of murder, and that he was 

 

9. Murray does not argue that the erroneous admission of Lt. 

Goshert’s testimony somehow taints his convictions on the drug 

charges. The prejudicial effect of Lt. Goshert’s testimony was 

to bolster the credibility of Richard Brown, who testified about 

the murder of which Murray was convicted. However, Brown did not 

testify in support of the drug charges. We therefore conclude 

that the district court’s Rule 608(b) error does not require 

reversal of Murray’s drug convictions. 
30

from New York. (App. 414) She denied that she had formed any 

opinion as to Murray’s guilt or innocence and affirmed that she 

could decide the case on the basis of the evidence. (App. 413-

14) The court was satisfied that Kling could serve impartially 

and denied Murray’s motion to excuse her for cause. (App. 419) 

 "In determining whether a particular juror should be 

excused for cause, our main concern is whether the juror holds a 

particular belief or opinion that will prevent or substantially 

impair the performance of his duties as a juror in accordance 

with his instructions and his oath." Kirk v. Raymark Indus., 

Inc., 61 F.3d 147, 153 (3d Cir. 1995) (quotations omitted), cert. 

denied, 116 S. Ct. 1015 (1996). "Determining whether a 

prospective juror can render a fair verdict lies peculiarly 

within a trial judge's province." United States v. Polan, 970 

F.2d 1280, 1284 (3d Cir. 1992), cert. denied, 507 U.S. 953 (1993) 

(quotation omitted). We review the district court’s ruling only 

for an abuse of discretion; "the question of the partiality of an 

individual juror `is plainly one of historical fact: did a juror 

swear that he could set aside any opinion he might hold and 

decide the case on the evidence, and should the juror's 

protestation of impartiality have been believed . . . . 

[Therefore,] the trial court's resolution of such questions is 

entitled, even on direct appeal, to special deference.'" United 

States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985), cert. denied, 
31

476 U.S. 1172 (1986) (quoting Patton v. Yount, 104 S. Ct. 2885, 

2891 (1984)). 

 Under this deferential standard of review, we are 

unable to conclude that the court erred in allowing Kling to 

serve as a juror. 

V. 

 Murray’s final argument is that the district court 

erred in allowing Sean Proffit to testify as to what Murray told 

him in jail. Murray argues that the admission of Proffit’s 

testimony deprived him of his Sixth Amendment right to counsel 

under Massiah v. United States, 377 U.S. 201 (1964). Massiah

held that the government may not, consistent with the Sixth 

Amendment, use as evidence statements made by the defendant 

"which [it] had deliberately elicited from him after he had been 

indicted and in the absence of his counsel." Id. at 206. See 

also United States v. Brink, 39 F.3d 419, 421-22 (3d Cir. 1994). 

 Thus, if the government had deliberately placed Proffit in 

proximity with Murray with the intention of eliciting 

incriminating statements from Murray in the absence of his 

counsel, Murray’s claim would be valid. See United States v. 

Henry, 447 U.S. 264, 274 (1980). In this case, however, the 

district court held an evidentiary hearing following Murray’s 

objection to Proffit’s testimony and concluded that there was no 
32

evidence that the government did so. (App. 396-412) We perceive 

no error in the district court’s treatment of this issue. 

VI. 

 For the foregoing reasons, we reverse the judgment of 

conviction and sentence on the murder charge and remand for a new 

trial. We affirm the judgment of conviction as to the drug 

charges and remand for resentencing, if appropriate, on those 

counts. 

 
33