2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-14-2011

USA v. Alfrederick Jones

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1185

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Alfrederick Jones" (2011). 2011 Decisions. Paper 361.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/361
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 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 Judge
2

Alfrederick 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 were controlled by surveillance officers. The first operation was audiorecorded 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 the operations. 

Two incidents during the trial are at issue in this appeal. First, during 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, 

which 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 stipulation. That the drugs were analyzed and they were cocaine. 

App. 120. Jones‟s counsel did not object to this clarification. In any event, both before 

the prosecutor‟s opening and during its closing instructions, the Judge told the jury that

counsels‟ statements 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 

requested a mistrial, which the District Court denied. He then requested an instruction, 

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 shot 

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 the 
4

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. The Judge confirmed: “I will handle the 

situation as I just indicated, if you request that.” Id. Jones‟s counsel stated: “I do.” Id.

The District Judge then addressed the jury: “I want to simply caution you at this 

junction that the tape you heard does not indicate that Mr. Jones said that he shot 

anyone.” Id. at 247-48. Jones‟s counsel did not object to this clarification. In addition, 

during his closing instructions, the Judge focused the 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 District 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 the prosecutor‟s statement about the stipulation and 

directing the jury to disregard the prosecutor‟s statement.

II. Analysis

A. Mistrial Request

We review a district court‟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 a 
5

likelihood they would mislead and prejudice the jury; (2) the strength of the other 

evidence; and (3) curative action taken by the district court.” Lore, 430 F.3d at 207. 

Hawkins‟s single reference to a shooting 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. The Government presented other evidence that the jury could 

have relied on to convict Jones. The strength 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 recording 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.3d at 336-37; Lore, 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 District 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 „clear or obvious, rather than subject to reasonable dispute‟; [and] (3) the error 

„affected the appellant‟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 may
6

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 errors 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 first meeting with Jones was audio-recorded and that Jones‟s 

counsel was asking Hawkins about that meeting. The 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 convict 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 

outcome 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, the 

prosecutor‟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 

engaged in any drug transactions. By the end of his opening, the jury understood that 
7

there was no stipulation that Jones had sold the drugs in the Government‟s exhibits. 

Moreover, in its closing instructions, the Court repeated that counsels‟ statements were 

not evidence. There also was substantial evidence 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 disregard the 

statement.

* * * * *

For these reasons, we affirm.