NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3563

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UNITED STATES OF AMERICA

v.

MICHAEL ARRINGTON,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1-09-cr-00078-009)

District Judge: Hon. Yvette Kane

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Submitted Pursuant to Third Circuit LAR 34.1(a)

May 30, 2013

BEFORE: JORDAN, VANASKIE and COWEN, Circuit Judges

(Opinion Filed: July 17, 2013)

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OPINION

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COWEN, Circuit Judge.

Michael Arrington (“Arrington”) appeals a judgment of criminal conviction and 

sentence that resulted after a jury trial on drug-related charges. Arrington argues that the 
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conviction should be vacated because the Government committed prosecutorial 

misconduct by failing to correct inconsistent testimony between two witnesses and 

because the District Court abused its discretion by allowing the Government to admit 

evidence that Arrington absconded from state parole after federal authorities arrested his 

co-conspirators. We will affirm.1

I.

Arrington first argues that the Government committed prosecutorial misconduct 

by failing to correct inconsistent testimony made by two Government witnesses. As 

Arrington did not raise this at trial, we review for plain error. See United States v. 

Brennan, 326 F.3d 176, 182 (3d Cir. 2003).

At trial, the Government presented evidence that Arrington was a supplier of 

heroin to several co-conspirators, including Omar Davenport (“Davenport”). Davenport 

testified that Arrington traveled to his home on a weekly basis to provide him with 

heroin. Davenport also testified that his girlfriend, Bobbie Sue Miller (“Miller”), assisted 

him in the drug business and that Miller was frequently in his house when Arrington 

would deliver heroin, but was “not in the room.” (App. 155.) According to Davenport, 

Miller was “probably in the bedroom”, and the drug deliveries took place in the living 

room. (App. 156.)

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

pursuant to 28 U.S.C. § 1291.
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Miller, however, testified that on two occasions, she saw Arrington deliver drugs 

to Davenport. On one occasion, Miller stated that she “was sitting in the living room” 

when Arrington arrived and that she saw Davenport give Arrington a bag containing 

cash. (App. 186.) Miller testified that on another occasion, she saw Arrington deliver a 

package containing a “block of heroin” to Davenport. (App. 188.) 

Arrington argues that the Government committed misconduct by vouching for the 

contradictory testimony of Davenport and Miller and for failing to correct Miller’s 

alleged perjury at trial.2

As a threshold matter, we cannot conclude that Miller committed perjury. “A 

witness commits perjury if he or she ‘gives false testimony concerning a material matter 

with the willful intent to provide false testimony, rather than as a result of confusion, 

mistake, or faulty memory.’” Id. (quoting United States v. Dunnigan, 507 U.S. 87, 94 

(1993)). However, even assuming that Arrington can establish that Miller perjured 

herself, Arrington cannot show that there was a reasonable likelihood that the false 

testimony could have affected the verdict. Arrington actually used these inconsistencies 

to his advantage; during his closing argument, Arrington’s counsel highlighted these 

 In order to assert a due process violation premised on perjury by 

a government witness, the defendant must show that (a) the witness committed perjury; 

(b) the Government knew or should have known of the perjury; (c) the testimony went 

uncorrected; and (d) there is a reasonable likelihood that the testimony could have 

affected the verdict. See United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008).

 2 Arrington apparently assumes that Miller’s testimony was perjurious and that 
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inconsistencies to the jury in an attempt to diminish Miller’s credibility. (App. 362.)3 

Thus, we conclude that there was no due process violation.

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II.

Arrington next argues that the District Court erred in admitting testimony that 

Arrington absconded from state parole after federal authorities investigated and arrested 

his co-conspirators. As Arrington preserved his objection by filing a pre-trial motion to 

exclude this evidence, we review for abuse of discretion. See United States v. Kemp, 500 

F.3d 257, 295 (3d Cir. 2007).

In February 2009, federal law enforcement arrested three individuals who were 

allegedly involved in the drug conspiracy, including Davenport and Miller. After the 

arrests, Arrington, who was on parole in Pennsylvania, began missing his parole hearings 

and was declared a fugitive by the Pennsylvania State Board of Parole. More than a year 

 

Davenport testified truthfully. 

3 Arrington’s counsel stated:

What did Ms. Miller say? She was in the room, she saw the sale of heroin, 

she saw it changing hands, she saw money changing hands. What did Mr. 

Davenport say? She was never in the room. That’s what he testified to, she 

was never in the room when that happened. Ladies and gentlemen, that’s 

not an insignificant detail, either. That’s not the kind of thing that 

memories just vary on because people remember things differently. You 

remember if you were there where drugs and lots of money were changing 

hands. Two different stories. Who’s telling the truth? The Government 

wants you believe they were both being truthful in this courtroom.

(App. 362.)

4 Arrington also alleges that perjury occurred when Miller testified that Davenport 

threatened to kill her several times and once threatened to cut off her fingers while 

Davenport denied that these incidents occurred. This inconsistent testimony was also 

likely favorable to Arrington, as it may have diminished Davenport’s credibility, a fact 
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later, Arrington was arrested in Baltimore, Maryland. At the time of arrest, he was using 

the name Richard Bloomfield.

Prior to trial, the Government gave Arrington notice that it intended to introduce 

evidence that at the time of the arrest of his alleged co-conspirators, Arrington absconded 

from parole. Arrington objected, and in a written opinion, the District Court held that the 

evidence was admissible for the limited purpose of proving Arrington’s consciousness of 

guilt. At trial Arrington’s parole officer testified that Arrington was initially a model 

parolee, but that when his alleged co-conspirators were arrested, he absconded from 

parole. The parties stipulated that Arrington was arrested in Baltimore and that he was 

using the name Richard Bloomfield. The District Court provided jury instructions that 

this evidence could only be used for the limited purpose of deciding whether Arrington 

had a consciousness of guilt, and could not be used for the improper purpose of 

concluding that Arrington has bad character or a propensity to commit crimes.

The District Court did not abuse its discretion by admitting this evidence. While 

the Federal Rules of Evidence do not allow the admission of evidence of an action to 

“prove a person’s character in order to show that on a particular occasion the person 

acted in accordance with the character,” Fed. R. Evid. 404(b)(1), such evidence can be 

admitted “for another purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident,” Fed. R. Evid. 

404(b)(2). Here, the Government introduced the evidence, not to prove that Arrington 

 

that Arrington’s counsel emphasized in his closing. (App. 354-55.)
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has bad character and acted in accordance with that character, but rather to show that 

fleeing from parole is evidence of his consciousness of guilt, and the District Court 

provided clear instructions to the jury about the proper use of this evidence. While the 

evidence can only be admitted if the probative value of the evidence outweighs any 

unfair prejudice, see Huddleston v. United States, 485 U.S. 681, 691 (1988) (citing Fed. 

R. Evid. 403), the District Court did not abuse its discretion in concluding that the 

evidence is more probative than prejudicial.

III.

For the foregoing reasons, we will affirm the judgment of conviction and sentence 

of the District Court.