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w . v i l l a no va . e du/thir dc ir c uit_2004/298NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 03-4585

UNIT ED STA TES OFAMERI CA

v. TO BI AS A. CUN NI NGH AM,

Appellant App eal from th e Un ited States District Co urt for the M iddle D istrict of P enns ylvania (D.C. Crimi nal Acti on No. 02-cr- 00237) Distri ct Judge: Honorable Sy lvia H. Rambo

Submitte d Under Third Circ uit LAR 34.1(a)

September 15, 2004 Bef ore: AL ITO , AM BR O a nd F ISH ER , Circuit Judges (Fil ed September 30, 2004)

OPI NION

AM BR O, Circuit

Judge Tobias A. Cunningham was convic ted bya juryof, among other crimes, bank robberyin viol ation of

18 U.S.C. § 2113. He now seeks a new trial , argui ng that t he1 This section reci tes onl y those fact s rel evant t o Cunningham’s convic tion. The

specifi c aspect s of the t rialto which Cunningham objec ts ar e discus sed in det ail i n the “An al y si s” se ctio n be lo w. 2 Distric t Cou rt mad e erron eous evide ntiary ruling s and that the prose cution enga ged in misconduct. For the r easons set out below, we affirm Cunningham’s convi ction and deny his req uest fo r a new trial.

I. FactualBackground and Procedural History 1 On the morning of Jul y 11, 2002, two men armed with ha ndguns robbed the Allfir st Bank in York, Pennsyl vania. The two men had entered t he bank prior

to the opening of busine ss and surp rised the ma nager an d tellers after they arrived. The ro bbers directed the bank employ ees to open bot h the main bank vaul t and the bank ATM . After fill ing their duffel ba gs with $388, 075 in cash, the robber s ti ed the hands of the bank employees an d attempted , unsuccessf ully, to lock them in the bank vault. The ro bbers then exi ted the bank. A signifi cant amount of e vidence l inked Cunningham to t he robbery . Fir st, an eyewit ness pla ced Cunningham at the scene of the crime. Edith Smith was waiting for the ba nk to open wh en the robb ers ex ited thro ugh the fro nt do or. O ne of the rob bers to ld her that the ban k wo uld be op en in five m inutes. She later pick ed Cu nningh am’s pho tograp h ou t of a lin eup a nd tes tified to th is fact a t trial. In addition, t

he prosecution pres ented the testimony of Cunni ngham’s two all eged co-conspi rator s at t

rial . One was a sixteen-y ear-ol d named Kevin Randolph. He tes tifi ed3

in detail how he, Cunningham and Bilan Nelson, a bank tel ler at Allfir st, planned the robbery . Randolph al so provide d detai led te sti mony as t o how the robberywas committed. One such detai l was that he had stol en purple l atex gl oves in pr eparation for the robbery. The police recovered a pai r of purpl e lat ex gloves near the bank f ollowing the robbery. A p olice forensics e xpert testified that these glov es contained Cun ningham ’s DNA. As f

orNel so n, sh e i ni ti al ly

de ni ed an y in vol ve men t i n the ro bbe ryin he r f ir st two stat ements to t

he polic e. After

being arrested, however, she changed her st ory and impli cated Cunningham. Her testimony at tri al, while downplay ing her r ole in t he

ro bb er y, la rg ely c or ro bo ra ted R an do lp h’ s te sti m on y. The prose cution also intro duce d evid ence that C unn ingh am m ade a ppro xima tely $55,000 in c ash purchas es, i ncluding buying a $50, 000 Lincoln Navigator, s hortl y after the robbery. At the ti me of his arrest, Cunningham was unemployed. Cu nni ngh am , how eve r, w as n ot an initia l rob ber y susp ect. T roy C rom er, a detective with t

he York CityPolice Department, had earl ier t aken the statement of Adri an Falli ngs. Fal lings testifie d that, shortl y after being release d from pris on, he was app roa che d by a n in div idu al na me d O rustu Bro wn wh o w as p lann ing to ro b a b ank
. Falli ngs tol d Cromer that he had att ended a meeti ng with Brown, an i ndividualnamed DeCarlo Pinckneyand a bank employ ee, duri ng which theydiscuss ed logis tics for the robbery . In fac t, prior t o arres ting Cunningham, both Brown and Pinckneywere charged2 Falling s’s statem ent also led to th e arres t of B ilan N elson . As n oted p reviou sly, it

w as af ter N els on ’s a rre st t ha t sh e im pl ica ted C un ni ng ha m in th e r ob be ry. 4 with the A llstate B ank r obb ery based on F allings’s statem ent. 2 Cunningham’s main theory of defense at tri al was that

Brown and Pinckney ha d robbed the ba nk. To thi s effect , Cunningham cal led Fall ings and Brown to t esti fy, but bot h in div idu als e xer cise d th eir F ifth A me ndm ent r igh t aga inst s elf- incr imin ation
. Cromer, how ever, testified to Fall ings’s previous statements as a declaration against interest. Cunningham also pre sented t he testimony of two individual s who state d that Bro wn had a dm itted to co mm itting the b ank r obb ery and th at Bro wn had p ut a “h it out” on F allings a nd an other in dividu al. Apparently

the jur y found t he evidence a gainst

Cunningham credibl e. Foll owing a three- day t

rialin February 2003, it convi cted hi m of four counts: (1) criminal conspir acy in vi ol at io n of

18 U. S. C. § 371 ; ( 2) ar med b ankro bbe ryin vi ol at io n of 18 U. S. C. § 2113(d); (3) bank r obbery in viol ation of 18 U.S.C. § 2113(a ); and ( 4) carryi ng and usi ng afi re ar m in furth er anc e of a crime of v io le nce in vi ol at io n of 18 U. S. C. § 92 4(c)(1 )(A). T he D istrict Co urt ultim ately senten ced C unn ingh am to an ag greg ate prison term of 270 months (fol lowed by fi ve years of supervised r elease ) and order ed a spe cial a sses sm ent in the a mo unt of $ 400 and restitu tion in th e am oun t of $ 388 ,120
. Cunn in gha m ti mel y app eal ed. We ha ve appe ll at e j ur is di ct io n un der 28 U. S. C. § 12 91.5 II. An alys is Cunningham allege s four di sti nct err ors occurred duri ng his t rial . Two alleged

error s invol ve evidentiaryruli ngs. Two involve prosecut orialmisconduct. When based on a p ermis sible inte rpretatio n of the F edera l Rule s of E viden ce, w e revie w a decisio n to adm it or e xclu de e vid enc e fo r ab use of d iscre tion
. See, e. g. , United States v. Saada , 212 F.3d 210, 220 ( 3d Cir. 2000) . We also r eview the Dist rict Court’s r

uling on pr osecutor mis con duc t for abu se o f dis creti on. United States v. Brennan , 326 F.3d 176, 182 (3d Cir. 200 3). N on- con tem por ane ous obj ectio ns a re re view ed f or p lain e rror. See id. ; United St at es v. Bro wn , 254 F.3d 454, 458 (3d Cir. 200 1). A. Evide nce of

PriorConvictions As n oted, C unn ingh am’s main defe nse a t trial wa s that oth er indiv iduals

com mitted the rob bery in qu estion. In this vein , Cun ning ham soug ht to intro duce into evide nce s evera l prior co nvictio ns of Oru stu B row n, inclu ding assau lt with a dead ly

we apon . The Distric t Cou rt, how ever, su stained the G over nm ent’s o bjectio n to this proffer. Cunningham argues that thi s ruli ng improperl y pr ecluded hi m from presenti ng a complete def

ense. We disagree. Rule 404(b) of t he Federal Rules of Evidence provides that “[e]vi dence of other

crimes, wrongs, or ac ts i s not admis sibl e to prove t he character of a person i n order t o show action i n conformity therewith. ” Cunningham contends t hat Brown’s prior

convictions would have bee n used to pr ove his i dentit y as the perpe trat or6

of the rob bery, not as evidenc e of a pro pensity to comm it the crime. Yet C unning ham’s

ow n brief belies th is positio n, allegin g the “ fact th at Bro wn com mitted a prev ious a ssault with a deadl y weapon is indicative of a man who would have no difficul ty pointi ng a gun at bank t elle rs. ” Appellant ’s Br. at 20. This is exactl y the ty pe of infer ence Rule 404(b)

wa s m ean t to p rote ct ag ains t. See Un ited Sta tes v. M astran gelo , 172 F.3d 288, 295 (3d Cir. 19 99) (sta ting tha t, to introd uce p rior crim e evid ence , the pro pon ent “m ust ‘clea rly arti culat e how that evi dence fit s int o a chain of l ogical infere nces’ without [al leging t he] mere propensity t o comm it cri me now based on the comm ission of” a crime in the past (cit ation omi tted) ). Further, Rule 404(b) makes no di sti nction be tween a prosec utor atte mpting t o use such evi dence in suppor t of his or her cas e in chi ef and a defendant atte mpting t o use such evi dence to pr ove that another c ommitted a c rime. B. State of Mind Testimony The prosecution’s f

irst tri al witne ss was Michele Mosley , a bank manager present at t he tim e o f th e r ob be ry. D ur in g d ire ct e xa m in ati on , th e p ro se cu to r a sk ed M os ley, “Could you de scri be for the juryyour stat e of mind duri ng that t ime?” Defense counsel object ed on rele vancy gr ounds. The Dist rict Court ultimatel y over

ruled t his obj ecti on and Mosley testi fied as follows: From the moment that

I saw them, Ithought Iwas going to di e. I remember looking up at

the cl ock when we w ere ordered to go into the vaul t because I tho ugh t that wo uld be th e las t time I w oul d be alive . An d it w as 8 :40
. And whi le I wa s s itti ng o n t he f lo or , Ith oug htof my

hus ban d an d my daug hter. I ha ve on e child . She is twelv e years old . An d she wa s in7

Flori da at that ti me. My thought was who was going to tel l her about me. An d m y husb and , I tho ugh t abo ut h im b eca use . . . . At this point, defense counselagain obj ected, the Dist rict Court concl uded that

Mosley had “an sw ered the q ues tion ” an d th e pr ose cutio n m ove d on to an oth er su bjec t. Cunningham argues on appealthat t his t esti mony was ir

releva nt, s erved no purpos e other than app ealin g to the e mo tion s of the ju ry and sho uld hav e be en e xclu ded
. We first c onclude that the Distri ct Court di d not abuse i ts di scretion in al lowing Mosley t o answer the ques tion pos ed to her. The federal bank robberystat ute requires the rob ber y be p erp etrat ed “ by fo rce a nd v iolen ce, o r by inti mid ation .” 18 U.S .C. § 211 3(a ). “As used in § 2113(a ), t he term ‘i ntimi dation’ means ‘to make fearful or put into fear. ’” United S tates v. Aska ri , 140 F.3d 536, 541 (3d Cir. 199 8) ( en banc ) (quoting United States v . Mc Carty , 36 F .3d 1 349 , 135 7 (5 th C ir. 19 94) ), vacated on ot her ground by 159 F.3d 774 (3d C ir. 1998 ); cf
. United States v. Maddalena , 893 F.2d 815, 819 (6th Cir. 1989) (“The re quirement that pr opertybe taken ei ther ‘ by for ce and viol ence’ or ‘ by intim idati on’ req uire s pro of o f fo rce o r thre at of for ce a s an elem ent o f the off ens e.”). Admittedl y, the int

imidation inquiry is obj ecti ve, not subjective, focusing on “whether ‘an ordinary per son in the tel ler’ s position reas onablycould inf er a threat of bodi ly harm from the defendant ’s act s.’ ” Aska ri , 140 F.3d at 541 (quoti ng United States v. Woodrup , 86 F.3d 359, 363 ( 4th Cir. 1996)). That sai d, aski ng Mosley about her st ate of mind ( i.e . , whether she was afr aid) was at least minimall y pr obative of whether a re asonable pe rson8

in her pos iti on also would be af raid. As for Mosley’ s actualtestimony, Rule 403 of the Feder al Rules of Evidence provides that “ evidence maybe excluded i f its probati ve value i s subst antia lly outweighed by the da nger of u nfair p rejudic e.” U nfair p rejudic e “m eans an un due te nden cy to suggest [ a] deci sion on an i mproper basi s, commonly , though not necessarily , an emotionalone.” United States v. Rutl and , 372 F.3d 543, 543 (3d Cir. 2004) (quoti ng Ru le 40 3 ad viso ry com mitte e no te). It maybe that

Mosley’ s answer was somewhat unres ponsive and exc essive . Once Cunningham’s attorney object ed to thi s test imony, however, the Distri ct Court i nstruc ted the prosecution to move on with its case. Further, both Mo sley and another witness testifie d, without

objection, t

hat sever al of the tel lers began cry ing duri ng the ordea l and pray ing for t

heir l ives. Defense counsel a lso di d not speci fical ly rais e a Rule 403 objection to t

he prosecution’s que sti on or reques t that the offendi ng testimony be s tri cken fro m th e rec ord
. See United States v. Boone , 279 F.3d 163, 188 (3d Cir. 2002) (st ating that fa ilure to ra ise a R ule 40 3 ob jection at trial trigge rs plain error re view ); United States v. Sandini , 803 F.2d 123, 126 (3d Cir. 1986) (same) . But, even if we assume er ror, it was not prej udicia l to Cunningham’s subst antia l ri ghts. In thi s context , we conclude t hat M osle y’s testim ony d oes not entit le C unn ing ham to a n ew trial. C. Witnes s Vouching Cunningham argues that the prosecution improperly vouched for the credi bili ty of9

Bilan Nelson on two separate oc casions . As noted pr eviousl y, Nelson fail ed to menti on Cunningham as a participant in t he bank robbery

in st atements precedi ng her arr est, but she later did s o. At trial, Nelson tes tifi ed on direc t examination that her previ ous stat ements had been fa lse. Subsequent t o this testimony, the pros ecuti on asked Nelson, “When did you fi nally

tellthe tr

uth to t he investigator s?” The second inci dent occurred during cl osing ar guments, when the prosecution st ated: Now Bilan I think, as I told you ea rlier in my opening statem ent, she w asn’t truthful at

first, she lied, and she told y ou she lied . . . . She lied because she didn’ t want to ge t in t rouble, and she didn’ t want to ge t the guy that s he wa s in a re lationsh ip w ith to ge t in troub le either. B ut eve ntually she did come around and admit what she had done, and she gave a st atement, and she tol d you agai n here today what s he did. While Cunningham’s couns el obje cted t o the pros ecuti on’s question of Nelson, no objec tion w as m ade to the state men ts mad e dur ing clo sing a rgum ent. To constit

ute imprope r witnes s vouching, two things must happen. First , “the prosecut or must ass ure the j ury that t he testimony of a

Government witness is cr edible .” Brennan , 326 F.3d at

183 (quoti ng United States v. Walker , 155 F.3d 180, 187 (3d Cir. 1998)). Second, “this ass urance [must be] based on ei ther t

he prosecut or’s per sonal knowledge, or ot

her information not

contai ned in the record. ” Id. (quoti ng Walker , 155 F.3d at 187) . A prosecut or, however, does not engage in vouching “ when he argues that ‘a witnes s is bei ng trut

hful based on t

he testimony gi ven at trial , and does not assure t he jury[of] the c redibi lit

y of t he witness based on his own personal knowledge[. ]’” Id. (quoti ng Walker , 155 F.3d at 187) (al terat

ion in original ). Fi nally , “a criminal conviction10

is not to be li ghtly

overturned on the basi s of a prose cutor’ s comments st anding al one, for the st atements or conduct must be viewed in context. ” United States v. Young , 470 U. S. 1, 11 (198 5). He re w e con clude that the prose cution did n ot imp rope rly vouch for the credib ility of Nelson. With regard t o the obje cted-to questi on, the overalltenor of t his port ion of Nelson’s testi mony is that he r ini tialstat ements to t he polic e were untrut

hful, but that he r subsequent

stat ements were t

ruthful . Further, t

he questi on was asked after Nelson admitt ed that

her previ ous statements were not true. Therefore, it was pr oper for t he prosecution to i nquire when, and in which st atement, she li teral ly decided, in her opi nion, to tel l the t

ruth. In addition, whil e the pros ecuti on’s st atements during cl osing ar gument did v ouch for B ilan’s tes timon y in a sens e, there wa s no im prop riety. The o bjecte d-to stat ements merel y fr amed Bilan’s earli er untr uthful s tate ments to t

he polic e. The prosecut or referenced neit her pers onal knowledge nor evidence out side t

he record, and Cunningham does not so al lege.

D. Statements R egarding “O ther Unan swere d Qu estions” Finall y, Cunningham objects to the f ollowing s tate ments made by the pros ecuti on durin g clos ing arg um ent: Th ere a re u nan sw ered que stion s in th is ca se, th ere is no q ues tion abo ut th at. The re ar e s ome th in gs th at maybe we’ llne ve r b e a bl e t o e xpl ai n, but we have to re member that what we’re here for i s to deci de the gui lt or innocence of Tobi as Cunningham, and t hat’s what’s re ally

involved. I’m not as king y ou to ignor e evidence about other people. What I’m say ing3 W e als o co nclu ded the f irst sta tem ent w as im pro per , id. at 1265, but no si milar

stat ement was made in our ca se. Accordi ngly , we focus on the analy sis of t he second 11 to you is th at that ev idenc e, how ever, to the ex tent tha t it, whe ther it af fects M r. Cun ning ham ’s guilt o r inno cenc e, sho uld b e inclu ded. If it doesn ’t, it shouldn’t . In ot

her words, y ou’re not

here to de cide whether Adrian Fal ling s is cr edib le. Y ou’ re n ot h ere to dec ide if Or ustu Bro wn is gu ilty. Yo u’re n ot to de cide if De Carlo Pinc kney is g uilty. You ’re her e to de cide if Tob ias C unn ingh am is g uilty, and tho se un answ ered q uestion s will h ave to wa it for ano ther day . . . . Cu nnin gham ’s cou nsel o bjecte d at this p oint, arg uing that the prose cution ’s statem ents refere nced the po ssibility of fu rther inv estigatio ns an d w ere an impro per atte mp t to influe nce th e dec ision o f the ju ry. He rais es the s ame argu men t on ap peal. In United States v. Zehrba ch , 47 F.3d 1 252 (3d Cir. 1995 ) ( en banc ), we addres sed the is sue of all usions t o further investigati ons. Duri ng closi ng arguments, the pros ecutor in Zehrbach made the following statement regarding the testi mony of two defense witnesse s: “Isuggest y ou shouldn’t belie ve Drizos and Smit h because they’ re guil ty of

exa ctly the sam e ba nkr upt cy fra ud t hat th ese two def end ants are g uilty of
. And don't you assume that t

hey are not going to get what 's coming t o them eit

her .” Id. at 1264 (emphasis added). We concluded the secon d statement was improper and irrel evant, because i t refe rred t o information outs ide of the record and s oug ht to inf luenc e the d ecision of the jury on an illegitima te basis. T his C ourt h as lon g ack now ledge d a de fend ant’s “ right to h ave h is guilt or innocenc e determined by t he evidence presented a gainst him, not by what has happened” — or by what mayhappen — “w ith regard to a crim inal p rose cutio n ag ains t som eon e els e.” Id. at 1266 (quoting United States v. Thomas , 998 F.2d 1202, 12 07 (3d C ir. 1993)). 3 Westat ement in Zehrbach
. 4 We also b elieve the pro secu tion m isspok e w hen it a lleged that the jury’s duty did not extend to determining the credibility of Adrian F allings. To the ex tent that Fallings’s stat ements impl icat ed Pinckneyand Brown, and to the extent this information doveta iled with Cunningham’s t

heory of defense, his st atements were rele vant. The prosecution, how ever, a lso stated that the jury shou ld con sider e viden ce reg arding other in dividu als to the ext ent it

refle cted on Cunningham ’s guilt or innocenc e. Thus, any er ror was null ifie d. 12 furthe r con clude d that th is “rem ark ef fectiv ely enco urag ed the jury to reac h a gu ilty verdict on irr elevant

and ill egiti mate grounds. ” Id. Nonetheless , we held t hat the pro sec uto r’s sta tem ent w as h arm less e rror. Id. at 1267. Sim ilarly, we b elieve the pro secu tion in th is case we nt too f ar and impro perly discu ssed iss ues irre levan t to Cu nnin gham ’s case . Use of the phra se “o ther qu estions will have to w ait for a noth er day,” es pecia lly after imm ediate ly referen cing th e pote ntial gu ilt of Brow n and Pinckney, implies t hat prosecutions were being planned, or at least contem plated, against these tw o individua ls. This is especially true when Cun ningham ’s main defense was that Brown and Pinckney , and not he, committed the All firs t Bank

ro bb er y. 4 We ultimately conclude, however, that the prosecution’s st atements were harmless when pieced int o place i n the entire t rial . Given “the real ity

of the human fal libi lit

y of t he parti cipant s, there can be no s uch thing a s . . . [a] pe rfect tri al. ” United States v. Hasting , 461 U.S. 499, 508- 09 (1983) (c itat ions ommitted). As such, we should not “r everse a conviction . . . when the er ror [al leged] i s harmles s since [,] by defini tion, the convi ction would have been obtai ned notwiths tanding t he asserted err or.” Id. at 50 6. A13

“non-constituti onal error is harmless when ‘it is high ly pro bab le that t he error did not contri bute to t

he judgment. ’” Zehrbach , 47 F.3d at 1265 (quoti ng Go vern men t of V irgin Island s v. To to , 529 F.2d 278, 284 (3d Cir. 1976)) (e mphasis i n text) . After Cun ningham ’s counsel o bjected to the p rosecution’s statem ents, the District Cou rt conducted a s idebar di scussi on. Upon its conclusi on, the prosecution made no other im pr op er re m ar ks an d C un ni ng ha m re qu es ted no cu ra tiv e in str uc tio n. M or e im po rta nt ly, the evi dence of Cunningham’s gui lt was very st rong. Two coconspir ators testifie d against Cunningham, an ey ewitness identi fied hi m, DNA evidence l inked him t o the crime and Cunningham was unabl e to account for more tha n $55,000 in c ash purchas es made shortl y after the r obbery . Accordingl y, we are convinced t hat he was convi cted on the basi s of the evi dence agains t him, not anyirr elevant or improper

stat ement made by the p rose cutio n. * * * * * For the for egoing rea sons, we affi rm Cunningham’s convi ction and judgment of sentence .