NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 09

- 2248

___________ UNITED STATES OF AMERICA

v. AHMED JUDGE, a/k/a EDY; a/k/a BLEEK

Ahmed Judge,

Appellant

_______________________ On Appeal from the United States District Court for the District of New Jersey D.C. Criminal No. 06

- cr - 00076

- 002 (Honorable Joseph E. Irenas)

______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

September 13, 2011 Before: SLOVITER, SCIRICA and SMITH, Ci rcuit Judges

.

(Filed: October 11, 2011 )

_________________ OPINION OF THE COURT

_________________ SCIRICA, Circuit Judge

. A federal jury found Ahmed Judge guilty of four offenses: consp iracy to commit drug trafficking, murder in f urtherance of a drug

- trafficking conspiracy , murder in the course of a firearms offense, and possession of a firearm by a convicted felon. Judge2

raises several claims of error on appeal : (1) insufficiency of the evidence on three of his charges ; (2) failu re to suppress his allegedly unlawfully obtained statements ; (3)
erroneous denial of his motion to sever offen s e s ; (4) failure to declare a mistrial after the
g overnment was unable to produ ce an expert witness to whom it referred in its opening

statement ; and (5) trial testimony that allegedly ran afoul of his Fifth Amendment rights

. 1
We will affirm.
I. 2 Ray mond Morales , who served as one of the government‘s key cooperating witnesses in this case, was t he leader of a large

- scale drug

- trafficking organizat ion based
in Camden , New Jersey. Between 1993 and 2004, Morales‘ s organization sold hundreds of kilograms of cocaine and cocaine base . Morales distributed both through ―drug sets ,‖ areas known for drug sales he operated in Camden , and through sub

- organizat ions headed by indivi duals with whom Morales was friendly . One such sub

- organization was led by
Jevon Lewis

. During the early 1990s through 1995, and from early 2001 through September 2002 , Lewis bought cocaine in bulk from Morales

. 3 Lewis sold at his own

― drug sets ‖ in Camden, including one at 8th and Central Streets. Ahmed Judge worked

1 Judge also joins two arguments presented by co

- defendant and co

- appellant Mack Jones. Those claims allege the government failed to prove the existence o f a single conspiracy, and the court erroneously permitted certain testimony from expert David McNamara. We find both arguments unavailing for reasons set forth in the companion case, United States v. Jones , No. 09

- 2955 (3d Cir. October 11 , 2011). 2 ―[W]e se t forth the facts on the basis of the evidence favorable to the government as the verdict winner[.]‖ United States v. Lore , 430 F.3d 190, 197 n.1 (3d Cir. 2005). 3 From 1995 through early 2001, and from September 2002 onwards, Lewis was imprisoned.3

for Lewis for a period of time in 2001 and 2002 , functioning primar il y as an armed body

man or ―enforcer‖ at Lewis‘ s sets

. Mack Jones headed a second sub group that s ourced
from Morales

. Jones purchased cocaine from Morales from 1994 through 2003, including during periods when Morales was in jail

. Troy Clark ran a third gro up that sourced through Morales, the ―MOB Boys. ‖ On September 8, 2001, an individual was shot and kill ed at Morales‘ s d rug set at Atlantic and Norris S treet s
. Morales believed violence at his markets was bad for
business , and wanted to retaliate

. Morales mistakenly believed the perpetrator was
Kenneth Fussell , and offe red Jevon Lewis $10,000 to have Fussel l killed

. Lewis accepted
and contracted with Ahmed Judge and Jamar Bacon to carry out the murder

. At 11:30 p.m. on October 4, 2001, Judge and Bacon shot and killed Fussell on the front steps of Fussell‘s apartment in Camden

. Camden police officer Serg e ant Strang was two blocks away fro m the shooting
when it occurred and went to the scene immediately . An eye witness told Strang he saw , from his second story bathroom, an African

- American mal e wearing a sweatshirt and a baseball cap flee to a nearby field. Str ang searched the field and w ithin minutes, found Judge hiding behi nd hay bales , squatting on a sweatshirt and a baseball cap. Strang asked Judge to show his hands and when Judge did not respond, Strang directed another officer
to handcuff him. Judge told S trang he had been shot. When Stran g asked by who m , Judge did not respond . Strang asked if the clothes Judge was sitting upon belonged to him, and Judge answered affirmatively.4

Hours later, at approximately 4:00 a
. m
. on October 5th , Judge was given Miranda warnings at the Camden police station , which he waived, and was questioned by O fficer Kellejan

. Judge made exculpatory statements. On November 3, 2001, Judge was arrested for the Fussell murder and brought to the Camden police station. He was again issued
Miranda warnings, which he waived, and was again questioned by O fficer Kellejan. Judge reaffirmed his statement s from his session with Kellejan on October 5th.
A grand jury returned a four

- count superceding indictment again st Ahmed Judge, Jevon Lewis, and Mack Jones. Count One charged defendants with conspiracy to
distribute and to possess with intent to distribute cocaine and cocaine base , under 21 U.S.C. § 8 46 (conspiracy) and § 841(b)(1)(A) (drug trafficking) ; 4 Count Two charged Judge and Lewis with mur der in furtherance of a continuing criminal enterprise or a drug

trafficking conspiracy , under 21 U.S.C. § 848(e)(1)(A); Count Three charged Judge and Lewis with murder in the course of a firearms offense, under 18 U.S.C. § 924(c); and Count Four charged J udge with possession of a firearm by a convicted felon , under 18 U.S.C. § 922(g) . After a two

- month trial, the jury found the defendants guilty on all

counts. The c ourt sentenced Judge to concurrent terms of life imprisonment on Counts One and Two, a conse cutive term of 120 months on Count Three, and a concurrent term of 120 months on Count Four. It sentenced Lewis to concurrent terms of life imprisonment on Counts One and Two, and a consecutive term of 120 months on Count
Three. It sentenced Jones to a ter m of life imprisonment. All three defendants filed

4 The i ndictment of April 25, 2007, also charged Dennis Rodriguez, Francisco Morales, Ruben Lozada, and Mark Davis on Count One. These co

- defendants pled guilty.5

appeals. We decide Ahmed Judge‘s appeal in this opinion , and Lewis and Jones ‘ s appeals in companion opinions.
I I. Judge contends he should be acquitted of three of his convictions

– for conspiracy,
murder in furtherance of a drug

- trafficking conspiracy , and murder in the course of a firearms offense

– for lack of sufficient evidence

. When adjudicating a sufficiency of the
evidence challenge , ― we review the evidence in the light most favorable to the
governm ent, ‖ United States v. Appl e whaite , 195 F.3d 679, 684 (3d Cir. 1999), and affirm ―if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‖ United States v. Dent , 149 F.3d 180, 187 (3d Cir. 1998) (intern al quotation marks and citation omitted). We examine the ― totality of the evidence, both
direct and circumstantial ‖ and ―credit all available infere nces in favor of the government. ‖ United States v. Gambone , 314 F.3d 163, 170 (3d Cir. 2003)

. There was su fficient evidence to convict Judge for conspiracy under 21 U.S.C. §
846 and § 841(b)(1)(A). Conspiracy requires (1) an ―agreement‖ between two or more
persons to commit an illegal act , and (2) that a defendant voluntarily participate in the agreement throu gh ―shar[ing] a unity of purpose ‖ with at least one co

- conspirator

. See App l e whaite , 195 F.3d at 684

. To show voluntary participation in a d rug - trafficking conspiracy , the g overnment must prove the defendant ―knew that the purpose of the agreement was the specific unlawful purpose . . . [of] possession of a controlled6

substance with intent to distribute .‖ United States v. Thomas , 114 F.3d 403 , 405 (3d Cir. 1997)

. Judge argues the g overnment did not prove his participation in a conspiracy to traffic drugs , n or his sharing a unity of purpose with any co

- conspirator. 5 T he evidence , Judge claims, ―at worst placed [him] in the company of d rug dealers. ‖ We disagree.
Several g overnment witnesses testified about Judge‘s active participation in Jevon Lewis‘ s cocaine distribution operation s throughout 2001 and 2002

. One witness, Bernard Murray , testified to regularly visiting Lewis‘ s drug set at 8th and Central S treets , where
he would see Judge onsite , armed with a gun

. Three MOB Boys testified about

c onversations they had with Judge in 2001 , during which he complained about the qualit y of Lewis‘ s crack cocaine, asked for advice about running a drug operation, and strategized about opening a new drug set with Lewis at 10th and Van Hook S treets. Additionally, t he g overnm ent introduced records showing 135 phone calls between Judge
and Lewis over a five week period in May and June of 2001. Taken as a whole, this
evidence provided a sufficient basis upon which a rational jury ―could have found the
essential elements ‖ of Lew is‘ s conspiring to traffic cocaine and cocaine base beyond a
reasonable doubt. Dent , 149 F.3d at 187.

5 Judge concedes the government presented sufficient evidence of an agreement to unlawfully distribu te cocaine.7

Furthermore, there was sufficient evidence to convict for murder in furtherance of a drug

- trafficking conspiracy

. 6 The statute provides : ― [ A ] ny person eng aging in any offense punishable under sec tion 841(b)(1)(A) of this title . . . who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results shall be [subject to punishment].‖ 21 U.S.C. § 848(e)(1)(A). Accordingly, t he elements of a murder charge under § 848 are : an ―intentiona[l]‖ killing; by a defendant ― engaging ‖ in an act punishable under § 841(b)(1)(A) (e.g. , drug

trafficking conspiracy) ; and a nexus between the killing an d the § 841(b) offense

. See
United States v. Santos , 54 1 F.3d 63, 69 (2d Cir. 2008) (requiring ―a meaningful connection between the killing and the drug offense‖). 7
Viewed in t he light most favorable to the government , ample evidence
demonstrated Judge‘s guilt on all three elements of murder in furtherance of a drug

trafficking conspiracy

. As for an ― intentional killing ,‖ an eye witness saw Judge fleeing
from the shooting, Sergeant Strang found Judge hiding in a field thirty yards away from

6 The government argues Judge failed to preserve his sufficiency of the evidence objection for this murder count, warranting plain error review. Gov‘t Br. at 56, 62. However, in his Rule 29 motion filed at the conclusion of the government‘s cas e, Judge contested the sufficiency of the evidence on the § 848 murder charge. Thus, the Dent standard of review is appropriate. 7 Judge argues an additional mens rea element should be read into the statute: knowledge that the killing was in furtherance of the conspiracy. But Judge cites no authority from this circuit supporting his position. Rather, he urges we follow United States v. McCullah , 76 F.3d 1087 (10th Cir. 1997), in which he claims the Tenth Circuit required ―outside contractor[s to] know of t he connection between the homicide‖ and the conspiracy. Appellant Br. at 54. Even if we were to follow McCullah , it is readily distinguishable from this case. The defendant in McCullah was hired solely for the § 848 murder and had no other connection to th e conspiracy. Judge meanwhile was convicted of the underlying conspiracy the murder furthered.8

the murder weapo n (subsequently recovered by two other officers) , and t wo MOB Boys
testified that Judge confessed to them he had kill ed Kenneth Fussell

. As for Judge‘s

― engaging‖ in an act punishable under § 841(b)(1)(A), in his case , conspiracy to traffic drugs, s everal g overnment witnesses described Judge as a regular ―muscle‖ at Lewis‘ s drug sets, and the g overnment‘s phone records showed a pattern of correspondence between Judge and Lewis consistent with conspiracy to sell drugs. As for a nexus between the killing and the drug

- trafficking conspiracy , Raymond Morales testified in detail about arrang ing for Fussell‘s death as well as his retaliatory motive

. There was also sufficient evidence with respect to murder in the course of a firearms
offense

. Judge‘s arguments on this charge are derivative of those he makes for the conspiracy charge

– contending that because the g overnment failed to prove his participation in a drug

- trafficking conspiracy, it also failed to prove his responsibility for
murder in the course of fire arm offense, undertaken to carry out the conspiracy. Because we reject Judge‘s argument on the conspiracy charge , we reject this argument as well

. I II. Judge contends the court erred in denying his motions to suppress three sets of his

statements

. We revie w factual findings in a suppression hearing for clear error , and exercise plenary review over the court‘s application of law to those facts

. United States v.9

Tracey , 597 F.3d 140, 146 (3d Cir. 2010). The court‘s decision to admit Judge‘s

statements was jus tified by both the facts and the law

. 8 First, Judge argues his statements to Sergeant Strang during their in

- field

encounter on the night of October 4th should have been suppressed because there were no
Miranda warnings

. 9 The D is t r ict C ourt rejected Judge ‘s motion to suppress because it
found Strang‘s questioning of Judge in the field to fall squarely under Quarles ‘ s public safety exception

. See New York v. Quarles , 467 U.S. 649, 659 n.8 (1984) (holding an individual‘s statements , albeit not preceded by Mi randa warnings, are admissible if the totality of the circumstances shows the officer‘s questions to ―relate to an objectively reasonable need to protect the police or the public from any immediate danger ‖). A shooting had occurred in a dense urban area ne ar a community center ; a witness had told
Officer Strang a man in a sweatshirt and a baseball cap fled from the shooting to a nearby
field ; Officer Strang found Judge hiding among a sweatshirt and cap in the indicated

8 Judge claims error from the denial of his request for an evidentiary hearing. We review such a decision for abuse of discretion, and will reverse ―only in rar e circumstances.‖ United States v. Hines , 628 F.3d 101, 104

- 105 (3d Cir. 2010). The court concluded the substance of Judge‘s suppression arguments had already been explored in an extensive proceeding in New Jersey state court, in July 2003. At that hearing , Judge made similar arguments to suppress his statements, Officers Strang and Kellejan had both testified, and Judge had cross

- examined each. The district court found Judge failed to ―put forward any real factual challenge‖ to the facts developed in the N ew Jersey proceeding, and an additional hearing would amount to no more than ―another shot at cross examining‖ the officers in the hopes Judge would discover new facts. Accordingly, it did not abuse its discretion in denying Judge‘s motion for a hearing on suppression. See Hines , 628 F.3d at 105 (―A motion to suppress requires an evidentiary hearing only if . . . there are disputed issues of material fact that will affect the outcome of the motion to suppress.‖). 9 Judge volunteered to Officer Strang he had been shot. Judge also told Officer Strang the sweatshirt and baseball cap he was sitting on top of were his.10

field; and upon seeing the officers, J udge volunteered he had been shot

. Under the
circumstances , the court was justified in con struing Strang‘s questions as driven by an

― objectively reasonable need ‖ to secure the public safety

– namely, to locate the missing
firearm and prevent further viole nce
. See United States v. Watters , 572 F.3d 479, 482

- 83 (8th Cir. 2009) (holding ―the officers‘ questions were designed to locate a weapon [the defendant] might have hidden shortly before his arrest‖ and so were ―prompted by a concern for public safety‖); United States v. Are , 590 F.3d 499, 506 (7th Cir. 2009) (―[Q]uestioning a suspect about whether he has a gun may fall within Quarles ‘ public safety exception .‖ ). 10 The c ourt‘s determination that Judge‘s in

- field statements were
admissible under Quarles was proper
. Judge also contends two sets of his statements to Officer Kellej an , the first of
which was made hours after the October 4th shooting and second of which was made after Judge was arrested for Fussell‘s murder on November 3, 2001, should have been

10 The district court‘s application of Quarles also finds support in the Supreme Court‘s reasoning in a recent decision, Michigan v. Bryant , 131 S . Ct. 1143 (2011). Although Bryant was a Confrontation Clause case rather than a Fifth Amendment case, the Court held an individual‘s statements to the police were not ―testimonial‖ and did not trigger a defendant‘s rights under the Confrontation Clause, b ecause the ―primary purpose of the interrogation‖ had been to address an ongoing emergency. Id. at 1165

- 66 (―[T]he ultimate inquiry is whether the  ̳primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency‘ . . . [T]he police responded to a call that a man had been shot. . . . [T]hey did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred. The qu estions they asked

—  ̳what had happened, who had shot him, and where the shooting occurred,‘

— were the exact type of questions necessary to allow the police to  ̳assess the situation, the threat to their own safety, and possible danger to the potential victim ‘ and to the public . . . In other words, they solicited the information necessary to enable them  ̳to meet an ongoing emergency.‘‖) (citations omitted).11

s uppressed

. On both occasions, Judge had been taken to the Camden police station and given Mirand

a warnings . On both occasions, Judge had orally acknowledged his rights and signed a Miranda waiver form

. Although not alleg ing any procedural Miranda
violation s , Judge contends his statements were in voluntary

. 11 With respect to his

statements o n the early morning of October 5 th , Judge argues he had been in custody
without food and water for seven hours before being interrogated , and anything he said
was accordin gly ― the product of psychological duress.‖ With respect to November 3rd , Judge argues his statements were involuntary because they were ―based on the unconstitutionally obtained statements . . . made

. . . on October 5. ‖
The D istrict C ourt correctly rejec ted Judge‘s involuntariness claims

. In
det ermining whether a confession i s voluntary, a court ― must satisfy [itself] that the confession was the product of an essentially free and unconstrained choice by its maker . . . and that the apellant‘s will was not overborne

. ‖ United States v. Swin t , 15 F.3d 286, 289 (3d Cir. 1994) (internal citations and quotations omitted)

. Here, relying on the transcript from a New Jersey state court proceeding during which Judge developed his

11 In his October 5th session with Officer Kellejan, Judge admitted to being in the neighborhood at the time of the shooting. He said while on Chelton Street, individuals in a vehicle began to shoot at him, and he ran away. Judge was unable to describe the individuals who shot him, nor could he think of any reason people would want to shoot him. When Officer Kellejan asked Judge to point out where he was shot, Judge said he was not sure he had been wounded that evening. Rather, he showed Officer Kellejan a scar on his ankle which he said he received four weeks earlier. Judge denied having any involvement in t he shooting of Kenneth Fussell and denied having a gun that evening. He admitted the hoodie and baseball cap found at the scene were his. In his session on November 3, 2001, Judge reiterated his statements from the previous interview about the events of Oc tober 4, 2001.12

suppression arguments at length, the District C ourt found ―n othin g in the record that suggests [Judge ‘s will ] was overborn ‖ on either October 5th or November 3rd. The c ourt found no evidence of threats or coercive comments made by the officers during the
interview s , nor any indication Judge was physically distressed

. Accordingly, the court did not err in finding Judge‘s post

- Mirand a statements to be voluntary and in admitting
them

. 12
IV

. Judge contends the c ourt erred in denying his pretrial motion to sever his two murder counts from his dru g conspiracy count. We review for abuse of discretion , United
States v. Eufrasio , 935 F.2d 553 , 568 (3d Cir. 1991) , and ―look to the indictment and not the subsequent proof adduced at trial‖ when conducting such review. United States v.
Thornton , 1 F.3d 14 9 , 153 (3d Cir. 1993). If the denial was improper , we determine
whether it led to ―clear and substantial prejudice resulting in a manifestly unfair trial

. ‖ Eufrasio , 935 F.2d at 568

. The court did not abuse its discretion. Under Fe d. R. Crim. P. 8(b), an indictment may charge two or more defendants with multiple offenses if the defendants ― are alleged to have participated in the same act or transaction, or in the same series of acts or

12 Any error with respect to the district court‘s admission of Judge‘s statements, either to Sergeant Strang in the field or to Officer Kellejan at the station, would have been harmless. There was considerable evidence of Judge‘s guilt of Fus sell‘s murder wholly independent of his statements to the police. This evidence included Judge‘s confessions to the MOB Boys, eyewitness testimony placing Judge fleeing from the shooting, and the fact that Judge was found hiding in close proximity to the s cene of the murder and to the murder weapon.13

transactions, constituting an offense or offenses.‖ 13 Fed. R. C rim . P. 8(b ). Rule 8(b)
allow s for joinder of a conspiracy charge and subst antive counts arising out of that conspiracy, ― since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan

. ‖ United States v. Somers , 496 F.2d 723, 729

- 30 (3d Cir. 1974). In the indictment, the g overnment explicitly linked each murder charge to the drug

- trafficking conspiracy charge . Count 2, alleging murder in furtherance of a drug conspiracy , stated Judge killed Fussell ―while engaging in . . . the conspiracy to distribute . . . crack cocaine . . . as charged in Count One of this Superseding Indictment.‖ Count 3, for murder in the course of a firearms offense, used identical language. Accordingly, the

court did not abuse its discret ion in finding Judge‘s conspiracy and murder charges to arise out of the ―same series of acts or transacti ons‖ as envisioned by Rule 8(b) and in
th us denying the motion to sever. See Irizzary , 341 F.3d at 289

- 90 (―[W]e conclude that the superceding indictment did not im properly join separate , unrelated crimes allegedly committed by Irizarry. Rather, he was charged with a RICO substantive violation and a RICO conspiracy violation, and all of the criminal acts charged against him in the superceding indictment . . . satisif[y] the  ̳same act or transaction‘ requirement of Rule 8(b).‖).

13 When a defendant is charged with multiple counts in a multi

- defendant case, joinder of his offenses is governed by Rule 8(b). See United States v. Irizzary , 341 F.3d 273, 287 (3d Cir. 2003) (―Rule 8(a)  ̳dealin g with the joinder of offenses, applies only to prosecutions involving a single defendant‘ . . .[I]n a multi

- defendant case such as this,  ̳the tests for joinder of counts and defendants is merged in Rule 8(b).‘‖ (citations omitted)).14 V. Judge claims the court erred in denying his motion for a mistrial , proffered after
the g overnment was unable to produce a gunshot residue expert to whom it had referred
earlier . Dur ing its opening statement, the g overnment informed the jury it intended to call an expert witness , Dr. Elzbieta Bakowska, to testify about gunshot residue found on Judge ‘s hands after the shooting. Due to her severe illness, however, the g overnment was

una ble to call Dr. Bakowska

. Judge moved for a mistrial

. The court denied his motion but
instructed the jury to disregard the g overnment‘s references to Dr. Bakowska. We review
for abuse of discretion. United States v. Retos , 25 F.3d 1220, 1224 (3d Cir. 1994)

. The court‘s denial w as not an abuse of discretion. When a ―prosecutor‘s remarks taken in the context of the trial as a whole, [are] sufficiently prejudicial to have deprived the defendant of his right to a fair trial,‖ a declaration of mistrial may be appropriate.
Retos , 25 F.3d at 1226. But this is a high standard. A reviewing court should assess ―the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant.‖ Moore v. Morton , 255 F.3d 95, 107 ( 3d Cir. 2001). The

court concluded the g overnment‘s references to Dr. Bakowska in its opening statement had been minor compared to the quantity of evidence in the case as a whole , and that a curative jury instruction would dispel any potential prejudice. 14 This assessment was
reasonable. S ee , e.g. , United States v. DeRosa , 548 F.2d 464, 472 (3d Cir. 1977) (holding

14 The instruction dire cted the jury to ―completely disregard all such statements by the prosecution‖ about a gun residue expert, and to assume ―[t]here is no evidence in this case that there was any gunshot residue on Mr. Judge‘s hand at any time.‖15

the government‘s reference to wiretap evidence during its opening did not cause undue prejudice because a jury instruction was sufficiently cur ative)

. V I

. Finally, Judge argues the court erred in failing to declare a mistrial or to grant a limiting instruction af

ter Sergeant Strang testified about several instances of Judge‘s
silence during the ir in

- field encounter on October 4th

. We review for abuse of discretion. Compl aint of Consol

. Coal Co ., 123 F.3d 126, 131 (3d Cir. 1997)

. During the government‘s direct examination , Sergeant Strang testified to five instances of Judge‘s silence

– or failure to volunteer information

– in the field after the
Fussell shooting

. Strang stated : (1) Judge did not respond when asked who had shot him; (2) Judge did not respond when Strang asked if an ID card found on him belonged to him; (3) Judge d id not volunteer information on why someone had been shooting at him; (4) Judge did not state that he was in pain; (5) Judge did not mention w hy he was in the

area at that time. Strang explained that t hroughout this encounter , Judge had been
h andcuffed as a security measure b ut had not been given Miranda warnings nor

arrest ed. 15

15 When Strang was testifying to these matters during trial, Judge‘s counsel did not raise contemporaneous objections. The following day, however, Judge‘s counsel moved for a mistrial or a limiting instruction, arguing Strang‘s testimony about Judge‘s silence had run afoul of Judge‘s F ifth Amendment freedom from self

- incrimination. The district court temporarily denied both motions and accepted briefing. Subsequently, it ruled Strang‘s testimony had not raised constitutional problems and neither a mistrial nor limiting instruction was n eeded.16

The District C ourt did not abuse its discretion in concluding Strang‘s testimony about Judge‘s silence did not intrude on Judge‘s Fifth Amendment rights. A person‘s
silence in the face of police questioning before he has been issued Miranda warning s can be considered sub stantively against him at trial, without triggering the Fifth Amendment

. See, e .g. , United States v. Johnson , 302 F.3d 139, 147 (3d Cir. 2002) (sustaining the prosecution‘s substantive use of the defendant‘s silence in the face of of ficer questioning because the bar against such evidence ―does not apply to the post

- arrest, pre

- Miranda warnings situation‖); see also Virgin Islands v. Martinez , 620 F.3d 321, 335 (3d Cir. 2010) (―Not every reference to a defendant‘s silence, however, res ults in a Doyle violation. Where  ̳no governmental action induce[s] the defendant to remain silent,‘ the
Miranda

- based fairness rationale does not control.‖ (citing Fletcher v. Weir , 455 U.S. 603, 606 (1982)). We also note that the District C ourt had previo usly adjudicated a suppression motion and concluded Strang‘s failure to issue Miranda warnings before questioning Judge in the field was proper
. See supra

. Accordingly, Strang‘s testimony about Judge‘s silence did not necessitate a mistrial or a curative i nstruction. 16
V I I. For the foregoing reasons, we will affirm the judgment of conviction and sentence.

16 Any legal error in admitting Strang‘s testimony about Judge‘s silence would have been harmless. Strang‘s description of Judge‘s various episodes of silence consisted of a few lines of questioning out of a 7000 page trial transcript. After such qu estioning, the prosecution did not make subsequent reference to Strang‘s testimony about Judge‘s silence, neither during trial nor in its closing argument. Accordingly, the prejudicial impact of Strang‘s testimony was minimal at best.