2011 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

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w . v i l l a no v a . e du/thir dc ir c uit_2011/361NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No s
. 10

- 1185 & 10

- 1684

_______________ UNITED STATES OF AMERICA

v. ALFREDERICK JONES, a/k/a Frederick Jones

Alfrederick Jones, Appellant

___________ ____ On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Criminal Action No. 2

- 09

- cr - 00137

- 001) (D.C. Criminal Action No. 2

- 09

- cr - 00269

- 001) District Judge: Honorable R. Barclay Surrick District Judge: Honorable Juan R. Sanchez

_______________ Submitted Under Third Circuit LAR 34.1(a)

September 23 , 2011

_______________ Before: AMBRO , CHAGARES, and VANASKIE , Circuit Judges

(Opinion filed : October 14, 2011 )

_______________ OPINION

_______________ AMBRO, Circuit Judge2

Alfreder ick Jones was convicted in the District Court of two counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)

. Jones requests that we vacate the judgment of conviction and remand for a new trial

. 1 We disagree, and thus affirm.
I. Background As we write solely for the parties, we recite only those facts necessary to our
decision. Jones was indicted for two alleged sales of cocaine to a cooperating government witness, James Hawkins, in an undercover investigation. Both undercover operations w ere controlled by surveillance officers. The first operation was audio

recorded and videotaped. Because of an equipment malfunction, only the videotape of the second operation was available at trial , although the officers heard a live audio
transmission during the operation

. During the week

- long trial, the two videotapes and a videotape of the officers‟ observation of Jones prior to Hawkins‟s first alleged purchase were played to the jury

. It was provided a transcript of the audio recording of the first operation

. Hawkins and the officers testified regarding t he operations.
Two incidents during the trial are at issue in this appeal. First, d uring his opening

statement , the prosecutor noted : “There‟s been a stipulation.

. . . [W]e‟ve agreed that there‟s been an analysis conducted by the Pennsylvania State Police, Bureau of Forensic
Services

. . . . [T]hey analyzed Government‟s Exhibits 1 and 2, which [were] purchased from [Jones].” Appendix (“ App. ”) 118. After the prosecutor‟s opening, during a sidebar

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. Jones filed a notice of appeal from the judgment in an unrelated case, wh ich was docketed at No. 10

- 1684 and consolidated with the current appeal at No. 10

- 1185. Jones is not pursuing his appeal in No. 10

- 1684 , and thus it is dismissed

.3

conference, Jones‟ s counsel requested that the District Judge clarify that the stipulation provided that the drugs in the Government‟s Exhibits 1 and 2 contained cocaine, not that the drugs were purchased from Jones. The Judge stated to the jury: I told you that during the course of the trial you may hear stipulations of counsel. Well, you just heard one stipulation. That stipulation is that the drugs that were

-- that the agents presented to the lab were, in fact, cocaine. That‟s the stipula tion. That the drugs were analyzed and they were cocaine. App. 120. Jones‟s counsel did not object to this clarification. In any event , both b efore the prosecutor‟s opening and during its closing instructions , the Judge told the jury that counsels‟ st atements and arguments were not evidence.
Second , during his cross - examination of Hawkins, Jones‟s counsel asked about the audio recording and videotape of the first operation : “Now, when Mr. Jones first got to you, you spoke outside for a little while, correct?” App. 245. Hawkins responded: Right, [Jones] was kind of saying this was a place where he shot somebody at and that, that one of my cousins, you know, didn‟t tell him and so forth and so on or whatever, something to that extent, just pointing out the exact place where exactly

-- where it exactly had happened at. Id

. Jones‟s counsel immediately asked for a sidebar conference because of Hawkins‟ s allegedly prejudicial implication that Jones had committed another crime . He initially requeste d a mistrial, which the District Court denied. He then requested an instru ction, but stated that he didn‟t know what that instruction should be

. The District Judge asked : “Well, do you agree that the tape does not reflect that Jones indicated that he sh ot somebody? .

. . I can certainly indicate that the tape does not say that Mr. Jones shot anyone.” App. 246

- 47. Jones‟s counsel suggested that would be a start, to which the4

Judge replied : “Unless you can give me some request, that‟s the way I intend to deal with it.” Id. at 247. He did not make a request. T he Judge confirmed: “I will handle the situation as I just in dicated, if you request that.” Id. Jones‟s counsel stated: “I do.” Id.
The District Judge then addressed the jury: “I want to s imply caution you at this junction that the tape you heard does not indicate that Mr. J ones said that he shot
anyone. ” Id. at 247

- 48. Jones‟s counsel did not object to this clarification. In addition,
d uring his closing instructions, the Judge focused t he jury on the two charges against
Jones: “ [T] he only charges in this case for your consideration are the charges of
distribution of cocaine.

. . . [T]here is no charge with regard to firearms

. . . .” Id. at 621. On appeal, Jones argues that the Distri ct Court erred by (1) denying his request for a mistrial after the jury heard Hawkins‟s testimony about the alleged shooting, (2) not striking and directing the jury to disregard this testimony, and (3) not giving a proper
curative instruction concerning t he prosecutor‟s statement about the stipulation and directing the jury to disregard the prosecutor‟s statement.
II. Analysis
A. Mistrial Request
We review a d istrict c ourt‟s denial of a motion for a mistrial based on a witness ‟ s allegedly prejudicial remarks for abuse of discretion. United States v. Riley , 621 F.3d
312 , 335

- 36 (3d Cir. 2010) (quoting United States v. Lore , 430 F.3d 190 , 207 (3d Cir. 2005) )

. We analyze three factors to determine whether Jones was prejudiced: “(1) whether [the witness‟ s] remarks were pronounced and persistent, creating a5

likelihood they would mislead and prejudice the jury; (2) the strength of the other evidence; and (3) curative acti on taken by the district court.” Lore , 430 F.3d at 207. Hawkins‟s single reference to a shoot ing during a rambling answer to one question during a lengthy cross

- examination in the middle of a week

- long trial is neither pronounced nor persistent. T he Government presented other evidence that the jury could
have relied on to convict Jones. The stre ngth of this other evidence is sufficient to outweigh any possible prejudice Hawkins‟s remark may have caused Jones. Finally , the District Court provided the jury with a curative instruction that highlighted that Hawkins‟s remark was not on the audio reco rding of the first undercover operation , which was the subject of the question that elicited the remark . Moreover, at the
conclusion of the trial, the Court specifically noted that there was no charge regarding
firearms

. See Riley , 621 F.3 d at 336

- 37 ; Lo re , 430 F.3d at 207

. It did not err in denying
Jones‟s motion for a mistrial.
B. Curative Instruction Regarding Hawkins’s Testimony Because Jones‟s counsel did not object to the curative instruction regarding Hawkins‟s remark or request that the Distric t Court take additional remedial steps , its
instruction and failure to strike the remark are reviewed for plain error. Riley , 621 F.3d at
322

. To demonstrate plain error, Jones must establish that: “(1) there is an „ error ‟ ; (2) the
error is „ c lear or obv ious, rather than subject to reasonable dispute ‟; [and] (3) the error

„ affected the app ellant‟ s substantial rights, which in the ordinary case means‟ it „ affected the outcome of the district court proceedings. ‟ ” Id. (quoting United States v. Marcus , -- U. S.

-- , 130 S. Ct. 2159, 2164 (2010)). If Jones establishes all three elements, we may6

exercise our discretion to award relief if the error “seriously affect[s] the fairness, integrity , or public reputation of judicial proceedings .” Id. (quoting Johnson v . United
States , 520 U.S. 461, 467 (1997)). The District Court‟s alleged error s are not clear or obvious and did not affect the outcome of the proceedings

. It provided the jury with a curative instruction that recognized that Hawkins‟s fir st meeting wit h Jones was audio

- recorded and that Jones‟s counsel was asking Hawkins about that meeting. T he Court later reminded the jury that there was no charge regarding firearms

. There also was substantial other evidence that the jury could have relied on to conv ict Jones. Thus, there was no plain error in not striking or directing the jury to disregard Hawkins‟s remark.
C. Curative Instruction Regarding The Stipulation Because Jones‟s counsel did not object to the District Court‟s curative instruction regarding the prosecutor‟s statement about the stipulation, its instruction and failure to direct the jury to disregard the statement also are reviewed for plain error. As with Hawkins‟s remark, the alleged errors are not clear or obvious and did not affect the

outcom e of the proceedings. The Court ‟s instruction clarified that the stipulation only provided that the drugs had been analyzed and found to contain cocaine , which addressed how the jury may have misconstrued the prosecutor‟s statement

. In addition, t he
pros ecutor‟s statement occurred very shortly after the Court instructed the jury that counsels‟ opening statements were not evidence. After this clarification, Jones‟s counsel proceeded with his opening statement, during which he argued that Jones had not
eng aged in any drug transactions

. By the end of his opening, t he jury understood that7

there was no stipulation that Jones had sold the drugs in the Government‟s exhibits.
Moreover , in its closing instructions, t he Court repeated that counsels‟ statements we re not evidence. T here also was substantial eviden ce the jury could have relied on to convict Jones. Again, there was no plain error in instructing the jury concerning the prosecutor‟s statement about the stipulation or in not directing the jury to disre gard the

statement

. * * * * * For these reasons, we affirm.