NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 14-3703

_____________

UNITED STATES OF AMERICA

v.

KAREEM LONG

a/k/a KAREEM SMALLS,

 Appellant 

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-12-cr-00418-003

District Judge: The Honorable Juan R. Sanchez 

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Argued February 29, 2016

Before: McKEE, Chief Judge, SMITH, and HARDIMAN, Circuit Judges

(Opinion Filed: May 5, 2016)

Eric B. Henson [ARGUED]

Robert Zauzmer

Virginia P. Pratter

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Counsel for Appellee
2

Raymond D. Roberts [ARGUED]

2nd Floor

1333 Race Street

Philadelphia, PA 19107

Counsel for Appellant

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OPINION

________________

SMITH, Circuit Judge.

This appeal stems from a stash-house robbery sting operation that took place 

in Philadelphia from June to July of 2012. Of the eight individuals caught in the 

operation, three pled guilty prior to trial.1 Following their convictions in a joint 

trial, the remaining five,2including Appellant Kareem Long, filed separate appeals, 

each contesting various issues relating to their convictions (and, for some, their

sentences). For the reasons explained below, we will uphold Long’s convictions 

and corresponding sentence.

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.

1 These were Najee Murray, Lafayette Rawls, and Jamie Dales.

2 Long’s co-defendants at trial were Marlon Graham, Kenneth Parnell, Frank 

Thompson, and Robert Lamar Whitfield. Separate opinions resolving each codefendant’s appeal have been, or will be, filed. See United States v. Whitfield, No. 

14-3345; United States v. Graham, No. 14-3717; United States v. Parnell, No. 14-

4100; United States v. Thompson, No. 14-4512.
3

I.

In June of 2012, a confidential informant (CI) contacted Robert Lamar 

Whitfield and asked him for help getting in touch with a mutual acquaintance so 

that the CI could invite the acquaintance to rob a drug stash house. Whitfield 

instead volunteered to take care of the robbery himself, claiming that he had 

significant experience robbing stash houses in the past. The CI then put Whitfield 

in touch with the CI’s “uncle,” who turned out to be an undercover agent for the 

Bureau of Alcohol, Tobacco, and Firearms (ATF). Whitfield met with the agent 

on several occasions to discuss the robbery. To facilitate the crime, Whitfield 

recruited others to join in the scheme, who in turn recruited others, including Long. 

Plans came to a head on July 18 when Long and seven others met with the 

undercover agent in the parking lot of a Hilton Hotel where the agent once again 

told those present about the robbery, including that he expected ten kilograms of 

cocaine to be inside the stash house, and that he expected the house to be guarded

by two men, one with a pistol and the other within reach of an assault-style rifle. 

The agent then made clear that any who wished to withdraw should do so at that 

time. After no one expressed hesitation about the plan, the group proceeded to a 

junkyard, presumably to check out a van that the agent was to have rented for use 

during the robbery. There, the group continued making preparations for the 

robbery, with several individuals arranging and inspecting firearms and 
4

distributing gloves to all present. At the undercover agent’s signal, law 

enforcement officials swarmed the yard and arrested the group. 

A grand jury returned an indictment charging each of the co-conspirators 

with multiple inchoate Hobbs Act robbery and drug distribution offenses, as well 

as with the crime of carrying a firearm during and in relation to a crime of violence 

or a drug trafficking crime. Additionally, Long, Thompson, and Dales were 

charged with being felons in possession of a firearm, though Long and Thompson 

were both acquitted at trial on this count. The jury convicted Long and the four 

other defendants on all counts for which they were mutually charged. Long was 

subsequently sentenced to 192 months in prison. He then timely filed this appeal.

II.

Long raises a number of issues for our consideration on appeal. First, he 

argues that the District Court erred by allowing the prosecution to use leading 

questions during the direct examination of one of its own witnesses; second, he 

claims that the District Court erred by admitting testimony of Lafayette Rawls

about extrinsic other acts; and third, he argues that the indictment should have been 

dismissed on the theory that a person may not be charged with both conspiracy and 
5

attempt to commit the same substantive offense.

3

 We will discuss each argument 

in turn below.4

A.

Long argues that the District Court erred by allowing the government to ask 

leading questions during the direct examination of Rawls. We review for abuse of 

discretion a district court’s decision regarding the use of leading questions. Gov’t 

of V.I. v. Brathwaite, 782 F.2d 399, 406 (3d Cir. 1986). Rule 611 of the Federal 

Rules of Evidence provides that “[l]eading questions should not be used on direct 

examination except as necessary to develop the witness’s testimony.” District 

courts enjoy wide discretion in deciding whether to permit leading questions, as the 

 

3 Long raises several other issues that some or all of his co-defendants have also 

raised. First, he claims that the District Court should have dismissed the 

indictment because the fictitious stash-house robbery could not possibly “affect[] 

commerce” as required for conviction under the Hobbs Act, 18 U.S.C. § 1951(a), 

and that the District Court erred (i) by not allowing him to contest during closing 

statements the government’s ability to prove an effect on commerce, and (ii) by 

refusing to instruct the jury that it could acquit on the Hobbs Act charges based 

solely on the fictitious nature of the scheme. Second, Long argues that the District 

Court should have granted the motion for discovery to pursue a claim of selective 

enforcement. Third, he claims the District Court erred in denying his and his codefendants’ motion to dismiss the indictment based on “outrageous government 

conduct.” Fourth and finally, he claims he was the victim of sentencing 

entrapment and sentencing factor manipulation. We rejected these or very similar 

arguments in United States v. Whitfield, No. 14-3345, and do so here for the same 

reasons expressed in that opinion.
6

rule “is phrased in words of suggestion rather than command.” Fed. R. Evid. 611 

advisory committee’s note to subdiv. (c); see also United States v. Shoupe, 548 

F.2d 636, 641 (6th Cir. 1977) (“It is well recognized that the use of leading 

questions during the direct examination of a witness falls within the sound 

discretion of the trial court.”).

The questions to Rawls that Long specifically claims were impermissibly 

leading and to which the District Court overruled his objections were:

 “[D]id you tell your uncle, Najee Murray, that you, Kareem Long and 

Kenneth Parnell were ready to do this?” 

 “Other than, Kareem Long and Kenneth Parnell, that you got to do the 

robbery, did you get anyone else to do the robbery?”

5

 

Although both questions suggested that Long had formed the intent to commit the 

robbery, we think the District Court did not abuse its discretion in admitting these 

questions. Any prejudice that the questions caused Long was minimal, as he had 

 

4 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. 

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a).

5

In his appellate brief, Long also points to a third question asked of Rawls that he 

claims was impermissibly leading: “And who was going in your car to the 

robbery?” Because Long did not object to this question, we are limited to plain 

error review. See Gov’t of V.I. v. Vanterpool, 767 F.3d 157, 162 (3d Cir. 2014). 

Even if it was error to permit this question, the error was not plain, nor did it 

“affect[] substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993) 

(quoting Fed. R. Crim. P. 52(b)). We are therefore without discretion to correct it. 

Id. at 731-32. 
7

every opportunity to cross-examine Rawls to demonstrate that Rawls was not 

aware of Long’s specific intent to engage in the crimes charged. As such, we will 

uphold the District Court’s decision to allow the questions. 

B.

Long also claims that the District Court erred by admitting testimony by 

Rawls to the effect that (i) Long approached Rawls a few weeks before the stashhouse sting in this case to ask for Rawls’ help in identifying a potential target for a 

robbery, and (ii) shortly thereafter Long informed Rawls that he and some 

accomplices had robbed the home of a drug dealer. We review for abuse of 

discretion the District Court’s admission of other act evidence under Rule 404(b) 

of the Federal Rules of Evidence. United States v. Ciavarella, 716 F.3d 705, 727 

n.12 (3d Cir. 2013) (“[T]he district court has significant leeway in reaching its 

decision.” (internal quotation marks and citation omitted)).

Extrinsic evidence of other acts committed by a defendant in a criminal trial 

is admissible if four requirements are met: first, the evidence must be proffered for 

a proper purpose under Rule 404(b); second, the evidence must be relevant to 

proving that purpose without relying on any propensity inference; third, the 

probative value of the evidence must not be substantially outweighed by the danger 

posed by the evidence of “unfair prejudice, confusing the issues, misleading the 

jury, undue delay, wasting time, or needlessly presenting cumulative evidence,” 
8

Fed. R. Evid. 403; and fourth, where requested, the evidence must be accompanied 

by a limiting instruction. See Ciavarella, 716 F.3d at 728 & n.15 (citing 

Huddleston v. United States, 485 U.S. 681, 691 (1988)).

Prior to trial in this case, the government moved in limine for the admission 

of various pieces of 404(b) evidence, including the evidence of Long’s prior homeinvasion robbery, citing motive and intent as proper purposes for all the 404(b) 

evidence. The District Court denied this motion, specifically noting that the 

government’s “chain of inferences” connecting the 404(b) evidence to motive – to 

wit, “that Defendants’ prior robberies show committing robbery is their livelihood 

(or ‘resume’), giving them a motive to commit robbery in this case” – “comes 

perilously close to an improper propensity argument that because Defendants 

committed robberies in the past, they are more likely to have committed the 

robbery charged in this case.” Nevertheless, the District Court’s denial was 

without prejudice to the government’s ability to renew its motion during trial “in 

the event the Defendants put at issue their lack of intent.” 

During his opening statement, counsel for Long suggested that when Rawls

recruited Long to participate in the stash-house robbery in this case, Long did not 

know the specific nature of the scheme, and that he showed up at the Hilton hotel 

parking lot on July 18 merely to hear about some unspecified “opportunity for us 
9

to make money.”6 Based on this, the District Court then granted the government’s 

renewed motion as to the 404(b) evidence against Long, concluding that the 

evidence was “relevant to rebut Long’s claim that he went to the Hilton on July 18 

simply to hear a pitch.” The court continued, 

The fact that Long went to the Hilton at the behest of Rawls—who 

had recently given Long a lead on a similar robbery, which Long went 

on to commit and then told Rawls about—tends to show both that 

Long knew the nature of the pitch beforehand and that his purpose in 

going to the Hilton on July 18 was to join the alleged conspiracy.

Thus, the District Court found the evidence relevant for two purposes, knowledge 

and intent.

While we have reservations about whether the evidence of Long’s prior 

home-invasion robbery was relevant to proving his intent to join the conspiracy in 

 

6 As he did before the District Court, Long argues on appeal that his opening 

statement did not suggest he was unaware that the meeting at the hotel parking lot 

related to a stash-house robbery. Nevertheless, the District Court clearly thought 

that Long’s opening was suggesting such ignorance, and we cannot conclude that 

this was an unreasonable interpretation of his remarks. 

We also reject Long’s argument that an opening statement cannot serve to place a 

matter “at issue” for purposes of Rule 404(b). Although Long is undoubtedly 

correct that information conveyed during opening statements does not constitute 

evidence upon which the jury may rely in reaching a verdict, see United States v. 

De Peri, 778 F.2d 963, 978 (3d Cir. 1985), this does not mean that a defendant’s 

opening statement revealing his defense theory cannot open the door to 404(b) 

evidence. See United States v. Kolodesh, 787 F.3d 224, 236 (3d Cir. 2015) 

(concluding that 404(b) evidence was relevant to counter the defense theory, as 

revealed during the defendant’s opening statement).
10

this case,7 we need not decide that issue because the evidence was clearly relevant 

to proving that Long knew he was going to the Hilton to hear about a stash-house 

robbery opportunity. The District Court also engaged in 403 balancing on the 

record and we find no reason to disturb the court’s conclusion that the probative 

value of the evidence was not substantially outweighed by danger of unfair 

prejudice.

8

 Finally, the District Court satisfied the fourth requirement for 

 

7 As the Seventh Circuit has noted, “only a fine line sometimes distinguishes 

[propensity and intent].” United States v. Jones, 389 F.3d 753, 756 (7th Cir. 2004), 

cert. granted, judgment vacated, 545 U.S. 1125 (2005). Therefore, prosecutors 

and district courts alike should take extra care to ensure that other act evidence 

purportedly offered to prove intent is not simply propensity evidence in disguise. 

See, e.g., United States v. Smith, 725 F.3d 340, 345-46 (3d Cir. 2013) (explaining 

that evidence of defendant’s prior drug dealing was impermissible propensity 

evidence because jury could find evidence relevant to proving proffered 404(b) 

purposes – motive and intent – only by relying on inference that defendant had bad 

character and that he “acted in conformity with that character” in engaging in 

charged conduct); Becker v. ARCO Chem. Co., 207 F.3d 176, 195 (3d Cir. 2000) 

(concluding that evidence that defendant-employer previously fabricated reasons 

for terminating different employee was not relevant to proving that defendant’s 

asserted reasons for terminating plaintiff were pretextual; “the evidence would 

establish ARCO’s intent to discriminate against Becker only if the jury drew the 

inference that in terminating him, ARCO acted in conformity with its purported 

prior conduct in terminating Seaver”).

8 The District Court concluded that the probative value was not substantially 

outweighed by the danger of unfair prejudice in light of the temporal proximity and 

factual similarity between Long’s previous robbery and the stash-house robbery in 

this case, as well as the fact that Rawls was at least somewhat involved in both. 

We owe substantial deference to the District Court’s analysis and conclusion 

regarding admissibility under Rule 403. See United States v. Caldwell, 760 F.3d 

267, 284 (3d Cir. 2014) (“When a court engages in a Rule 403 balancing and 

articulates on the record a rational explanation, we will rarely disturb its ruling.”). 
11

admitting extrinsic other act evidence by instructing the jury as to the limited 

purposes for which they could consider the evidence. Thus we uphold the District 

Court’s admission of 404(b) evidence against Long as being within the court’s 

discretion. 

C.

Finally, Long claims that it was error to allow him to be charged and 

convicted of attempt and conspiracy because they are both inchoate crimes. In 

support of this claim he cites United States v. Meacham, a Fifth Circuit opinion 

reversing the appellants’ convictions because the indictment charged them with 

“conspir[ing] to attempt” to commit various drug-related crimes, conduct that does 

not constitute an “offense” under the Criminal Code. See 626 F.2d 503, 507-09

(5th Cir. 1980). Long’s reliance on Meacham is grossly misplaced. In contrast to 

the appellants in Meacham, Long was charged in separate counts with conspiracy

and attempt offenses, not with “conspiring to attempt.” See United States v. 

Starks, 515 F.2d 112, 116 & n.5 (3d Cir. 1975). We therefore reject this argument 

as meritless.

III.

We will affirm the District Court’s judgment and sentence as to Long.

 

As such, we cannot conclude that the District Court abused its discretion by 

admitting the evidence under Rule 403.