2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

3-11-2014 

# U S A v . C or e y Gol son
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t 12-4198

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 1 2

- 4198

________________ UNITED STATES OF AMERICA

v. COREY GOLSON, Appellant

________________ Appeal from the United States District Cou rt for the Middle District of Pennsylvania (D.C. Crimina l Action No. 1

- 10

- c r - 0 0229

- 001 ) District Judge: Honorable William W. Caldwell

________________ Submitted Under Third Circuit LAR 34.1(a)

March 6 , 2014

Before: AMBRO, JORDAN , and ROTH, Circuit Judges

(Opinion filed : March 12, 2014 )

________________ OPINION

________________ AMBRO, Circuit Judge Appellant Corey Golson was convicted by a jury of drug and weapons charges and sentenced to 78 mon ths‘ imprisonment. He now appeals his conviction and argu es that2

the District Court abused its discretion when it did not grant a mistrial following the allegedly improper testimony of a Government witness during trial

. 1 I. Background 2 In July of 2010, the United States Postal Inspection Service (―USPIS‖) discovered that a package mailed from Phoenix, Arizona was addressed to a fictitious addressee

— Derek Brow n

— in Mechanicsburg, Pennsylvania. Investigators used a police dog to confirm that the package co ntained drugs and obtained a search warrant to open the packag e. Inside were nearly 20 pounds of marijuana. Investigators then arranged a controlled delivery of the package to the designated address. Defendant Corey Golson eventually came to the door, id entified himself as Derek Brown , and signed for the package. Thirty minutes later, a police detector in the package indicated that it had been opened. Police entered the home and found Golson with the open package

. During a search of Golson‘s room and s urrounding area , investigators found two firearms, ammunition, packaged and raw heroin, and equipment used to package the drugs for sale. Golson was charged with : (1) c riminal c onspiracy to di stribute and p ossess with
i ntent to d istribute m arijuana and h er oin , in violation of 21 U.S.C. § 846; (2) d istribution

1 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 . Our jurisdiction is pursuant to 28 U.S.C. § 12 91.

2 Golson‘s father , also named Corey Golson , was indicted on related drug and weapons charges in a separate proceeding before the same District Judge. We recently affirmed the elder Golson‘s conviction and sentence. See United States v. Golson , -- F.3d

-- , 2014 WL 521033 (3d Cir. Feb. 11, 2014). T hat opinion contains a more thorough recitation of the background facts of this case. Here we review only the facts necessary to decide the issue in this appeal.3

and p ossession with i ntent to d istribute m arijuana and h eroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)

- (D), and 18 U.S.C. § 2; and (3) p ossession of a f irearm d uring and in r elation to a d rug t rafficking c rime , in violation of 18 U.S.C. § 924(c)(1)(A), (c)(1)(B)(i). Golson pled not guilty to all charges and proceeded to trial

. On the second day of Golson‘s three

- day trial , the Government called Postal Inspector Joseph Corrado, the lead US PIS investigator in the case , as a witness. During his testimony, Corrado was asked whether he submitted the drugs and guns found during the search for fingerprinting. The following exchange occurred. [GOVERNMENT]: And were the firearms or any of the oth er items that

were recovered, were they submitted for fingerprinting to the regional lab? [ WITNESS ]: Not the regional lab, no. [GOVERNMENT]: And why not? [ WITNESS ]: Well, for a variety of reasons. Ninety

- eight percent,

roughly, of the cases I bring to the U.S. Attorney‘s Office plead out. Okay? I had an expectation that this case was going to take the same course. [DEFENSE]: Objection, Your Honor THE COURT: Absolutely, [AUSA] Bloom[?] [DEFENSE]: Can we approach? THE COURT: No, you don ‘ t need to approach. [DEFENSE]: This is mistrial information, Your Honor. THE COURT : Well

– [GOVERNMENT]: Don‘t talk about what ultimately happens. If you

could talk about the reasons specific other than that. If you could talk about reasons, any lab backlogs, an ything like that.4

[WITNESS]: Sure. The labs are backlogged roughly three to four

months. It‘s an expensive process to go through , and I need to assess

– I‘ve got as many as 20 active cases going on

– what needs to be sent and what needs to be taken care of. App. at 205

- 06. During the next recess, Golson‘s counsel again moved for a mistrial . She argued that Corrado‘s testimony was highly prejudicial because it suggested to the jury that Golson was going to plead guilty and forgo his right to go to trial . App. at 248

- 49. Judge Caldwell denied the motion, but noted that he would review the written record on the issue. Id

. at 249. The following day , during an off

- the

- record conversation in chambers, Judge Caldwell offered to give a cautionary instruction to the jury about Corrado‘s testimony in response to the fingerprinting question. Golson declined such an instruction. His counsel later explained that ― in our opinion, [Corrado‘s] testimony was too prejudicial, and if I had gotten a cautionary instruct ion, it would have been way after the statement had been made, and it could not have cured the prejudice that I think the statement created in the minds of the jurors. ‖ App. at 384. 3

3 Golson may well have waived th e issue he appeals by refusing the Court‘s proffered instruct ion. See United States v. Grubczak , 793 F.2d 458, 462 (2d Cir. 1986) ( finding a waiver of appellate review where the defendant did not request a limiting instruction following a court‘s failure to communicate an evidentiary ruling to the jury); United Sta tes v. Tedder , 801 F.2d 1437, 1445 (4th Cir. 1986) ( refusing to grant a mistrial where the defendant declined a court‘s proffered curative instruction ). The Government does not assert waiv er . I n any event, because we conclude that Golson ‘ s argument fails under the Lore factors, we need not decide the issue.5

Golson was found guilty on all charges except a sub

- part of the conspi r acy charge (the jury found him not guilty of conspiracy to possess with intent to distribute marijuana )

. He moved for a new trial based on , among other things, Corrado‘s testimony. Judge Caldwell issued a memorandum opinion denying the motion , App. at
11

- 16, and , as noted, Golson was sentenced to 78 months‘ imprisonment. He now appeals his conviction. II. Discussion Golson raises one issue on appeal: whether the District Court abused its discretion when it denied him a mistrial based on Corrado ‘s testimo ny that ― [n] inety

- eight percent, roughly, of the cases I bring to the U.S. Attorney‘s Office plead out. Okay? I had an expectation that this case was going to take the same course.‖ App. at 206.
We review for abuse of discretion the denial of a motion for m istrial based on a witness‘s allegedly prejudicial comments. United States v. Self , 6 81 F.3d 190, 199 (3d Cir. 2012)

. ― Our inquiry focuses on whether [the] conduct at trial was so prejudicial that defendant was deprived of a fundamental right , ‖ Unit ed States v. Xavier , 2 F.3d 1281, 1285 (3d Cir. 1993) , in this case the Sixth Amendment right to a fair trial. Both parties
agree that , ― in reviewing the denial of [a] motion on that standard, three factors guide our analysis: (1) whether [Corrado ‘ s] rem arks were pronounced and persistent, creating a likelihood they would mislead and prejudice the jury; (2) the strength of the other evidence; and (3) curative action taken by the [D] istrict [C] ourt. ‖ United States v. Lore , 430 F.3d 190, 207 (3d Cir. 2005)

.6

T he parties disagree as to how the jury likely interpret ed Corrado‘s testimony.
Golson contends that the jury would believe that Corrado knew that Golson was going to plead guilty , and even goes so far as to assert that the jury would have inferred tha t Corrado was privy to plea negotiations. Golson Br. at 15 (―F rom the jury‘s perspective, the only reason for Corrado to forego fingerprinting based on his  ̳expectation‘ that Golson was pleading guilty would be if Corrado were privy to actual plea negotia tions

. . . . ‖ ). The Government counters that Corrado simply suggested that most defendants plead guilty. Turning to Lore’s three

- part test, we agree with the District Court that Corrado‘s statement was not ―pronounced and persistent.‖ App. at 13. L ore held that ― a single statement by a witness whose testimony spanned five days hardly can be deemed

 ̳ pronounced and persistent, ‘‖ especially when ― the record contains strong evidence of the extent of [the defendant ‘ s] participation in the illegal schemes

. ‖ Lore , 430 F.3d at 207. Corrado‘s statement that he expected Golson to plead guilty was improper under Federal Rule of Evidence 403 , but it was a single comment made in the course of a three

- day trial

. And t he Government persuasively argues that Corr ado‘s statement was unlikely to prejudice the jury given its obviously conclusory nature . Finally, f ollowing Golson‘s objection to the testimony, Corrado offered an admissible explanation as to why he did
not immediately send the evidence for fingerprinti ng analysis , thereby softening any effect his initial explanation was likely to have

. For these reasons, we believe Corrado‘s statement was neither pronounced nor persistent.7

We also conclude that the second factor, the strength of the other evidence agai nst Golson , weighed against granting a mistrial

. The Government presented evidence that Golson identified himself as Derek Brown , and then signed for and opened a package contain ing nearly 20 pounds of marijuana. During the subsequent search of the home,
i nvestigators found two firearms, ammunition, drugs, and equipment used to package the drugs for sale in and around Golson‘s bedroom . Accordingly, the evidence strongly supported the conviction

. Finally, the third factor, cur ative action taken by the co urt, also weighs in the Government‘s favor. The District Court offered to instruct the jury that Corrado‘s statement was not relevant, but Golson refused , essentially arguing that the instruction would disadvantage the defendant by drawing attention to th e testimony

. While it is true , as Golson argues, that ― some occurrences at trial may be too clearly prejudicial for . . . a curative instruction to m itigate their effect,‖ Donnelly v. DeChristoforo , 416 U.S. 637 , 644 (1974), an instruction by the Court th at the jury should ignore Corrado‘s remark would have cured possible prejudice to Golson in this case

. Th at Golson refused the instruction for fear of drawing the jury‘s attention to the comment only bolsters our conclusion that the jury gave little, if a ny, weight to the statement

. We agree with the District Court that each of the three factors under Lore weighed against granting Golson a mistrial based on Corrado‘s statement . We conclude,8

therefore, that t he District Court did not abuse its discretio n when it denied Golson‘s
mistrial motion

. 4 For the foregoing reasons, we affirm.

4 There may be a persistent problem here of another sort. This is not the first time Inspector Corrado has stepped over the line in the same manner he did here . While we do not think his behavior war rants a retrial, we would be remiss if we did not acknowledge what defense counsel has pointed out: in United States v. Williams , 444 F. App'x 535, 537 (3d Cir. Sept. 14, 2011), we had to deal with the same problem created in the same fashion by the same l aw enforcement official. According to our nonpreceden tial opinion in that case, ― [t]he allegations [of a Sixth Amendment violation] stem[med] from Inspector Corrado's response to a question about why he had not a ttempted to take fingerprints:  ̳ Just an inv estigative step I chose not to take. I didn't think we would honestly be here.‘‖ Id. One comment like that can perhaps be passed off as inadvertence (and indeed the panel in Williams opined that a ―review of the testimony does not easily lead to [the] i nference‖ that the officer was commenting on Williams‘ decision to ―go to trial,‖ id. ) . This being the second occasion, however, the G overnment is in a more tenuous position in asserting that there is no problem. We expect that we will n ot be confronted with a third go

- around of Corrado testifying or implying that he expected a defendant to plead guilty.