                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-1997

USA v. Vaulin
Precedential or Non-Precedential:

Docket 97-1333




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Recommended Citation
"USA v. Vaulin" (1997). 1997 Decisions. Paper 280.
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Filed December 23, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1333

UNITED STATES OF AMERICA

v.

MOSHE VAULIN

       Appellant

Appeal from a Judgment of Conviction
From the United States District Court
for the Eastern District of Pennsylvania
(No. 96-cr-00267-2)

Submitted Pursuant to Third Circuit LAR 34.1(a)
December 4, 1997

BEFORE: COWEN and McKEE, Circuit Judges, and
WEIS, Senior Circuit Judge

(Filed December 23, 1997)

       Jeffrey M. Miller, Esq.
       Nasuti & Miller
       21 South 5th Street
       The Bourse, Suite 860
       Philadelphia, PA 19106

       Attorney for Appellant

       Christopher R. Hall, Esq.
       Office of United States Attorney
       615 Chestnut Street
       Suite 1250
       Philadelphia, PA 19106

       Attorney for Appellee
OPINION OF THE COURT

PER CURIAM:

The defendant appeals from his conviction for two counts
of receipt of stolen property in violation of 18 U.S.C. SS 371
and 2315. He alleges that the district court erred in
denying his motion for a mistrial. For the reasons that
follow, we will affirm.

The district court addressed the issue now before us in
ruling upon the defendant's post-trial motions under Fed.
R. Crim. P. 29(c) and 33, and we affirm substantially for the
reasons set forth by the district court in its April 21, 1997
memorandum. However, given the nature of the challenged
prosecutorial conduct, we think it appropriate to
supplement what the district court has already said about
this case.

I.

Defendant and his codefendant, Morris Gershtein, each
operated jewelry stores in "Jewelers Row" in Philadelphia,
Pennsylvania.1 The Government charged that the defendant
and Gershtein entered into a relationship with Harold
McCoy, whereby the latter would engage in a series of
"smash and grab" robberies of jewelry stores in Virginia,
North Carolina, Texas and elsewhere, and sell the proceeds
of those robberies to defendant and Gershtein. McCoy was
arrested in Texas for robbing a jewelry store there and
transferred to Philadelphia, where he was charged in
relation to several "smash and grab" robberies. Thereafter,
McCoy entered into a plea agreement wherein he agreed to
cooperate with the police in their investigation of Vaulin
and Gershtein. As part of his cooperation McCoy wore a
"body wire" and recorded conversations with Vaulin and
_________________________________________________________________

1. We need not set forth the facts in great detail as they are adequately
summarized in the district court's memorandum opinion. We will,
therefore, reiterate only those facts which are pertinent to the issue
upon
which we wish to elaborate.

                               2
Gershstein while selling them watches that appeared to
have been stolen from other jewelry stores.2 Vaulin was
arrested almost immediately after purchasing the watches
from McCoy and proceeded to a jury trial jointly with
Gershtein on the aforementioned charges.

During the course of that trial, the Government called
McCoy as a witness. On redirect examination, the Assistant
United States Attorney asked McCoy whether he had
received any threats while in prison because of his
cooperation with the Government. McCoy answered that he
received many death threats from inmates who are from
Philadelphia. The prosecutor then asked McCoy why an
inmate might threaten to kill him, but defense counsel
objected and the court called counsel to sidebar because of
its concern over the obvious dangers of this line of
questioning. At sidebar, the prosecutor conceded that the
threats did not come from Vaulin or Gershtein, and that
these defendants had nothing to do with any threats. The
court denied the defense motions for a mistrial, and asked
the Government to clarify its question to eliminate any
perceived connection between the threats and the
defendants. The Assistant U.S. Attorney then asked McCoy:
"You were threatened at Lewisburg but it had absolutely
nothing to do with these defendants here, is that correct?"
However, McCoy responded, "it was just basically--
directly, I am going to say no, not directly." App. at 124.
Another sidebar ensued during which defendants renewed
their motion for a mistrial fearing that McCoy's answer
implied that the defendants had threatened McCoy
indirectly. Nonetheless, the court once again denied that
motion.

Following this sidebar, the court instructed the jury as
follows:

       This is by way of clarification. At sidebar here, the
       Government and the attorneys for the defendant
       stipulated and agreed that these two defendants that
       are in this courtroom on trial, had nothing whatsoever
_________________________________________________________________

2. In actuality, the watches that he sold to the defendant and Gershtein
were provided McCoy by the FBI for use in this sting operation.

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       to do with any threats that this man may have
       received. That is to be clarified and made clear.

App. at 126. It is this exchange upon which we comment.

II.

It is obvious that this case is not like those cases
exemplified by U.S. v. Gonzales, 703 F.2d 1222 (8th Cir.
1993), in which evidence of a threat to a witness can be
linked to a defendant and therefore tends to establish a
defendant's consciousness of guilt. In that situation, "the
probativeness of the death threat [outweighs] any danger of
undue prejudice." Id. at 1223. Here, the Government
concedes that none of the death threats that McCoy
received came from either of the defendants who were on
trial. Rather, the threats were apparently the result of a
prison code that requires inmates to be antagonistic to any
inmate who cooperates with the Government in criminal
prosecutions.

The Government attempts to justify its inquiry here by
arguing that it was appropriate to bring out McCoy's
concerns about remaining in prison in order to counter
defense counsels' attempt to cross-examine McCoy about
the "sweet deal he had made with the Government." See
Appellee's Br. at 11. However, we are unpersuaded by the
logic of this explanation.

It goes without saying that persons in prison would
prefer not to be there and may, therefore, avail themselves
of an opportunity to reduce the amount of time they have
to spend in prison whether or not they are receiving any
threats while they are incarcerated. Thus, the fact of
incarceration is, by itself, all that is needed for the average
person to understand why anyone would enter into a
"sweetheart deal" to shorten a period of incarceration. It
also should go without saying that any prosecutor,
regardless of his or her experience, ought to appreciate that
when a cooperating witness is asked about death threats
that he or she has received while in prison, a reasonable
juror might readily assume that the defendant is behind
such threats. Common sense would cause a juror to
wonder why else the prosecutor would ask such a question.

                               4
Accordingly, the prosecutor's opening of Pandora's box here
is as improper as it is ill advised. It invited the jury to
return a verdict based upon an inappropriate and
erroneous assumption, and then beckoned to them to
accept that invitation by exercising the common sense that
most trial courts instruct them to utilize while deliberating.

Fed. R. Evid. 401 defines "relevant evidence" as follows:

       evidence having any tendency to make the existence of
       any fact that is of consequence to the determination of
       the action more probable or less probable than it would
       be without the evidence.

Despite the instant prosecutor's assertion to the contrary,
we are hard pressed to see how, under the circumstances
here, evidence that an inmate received death threats that
are no way connected to a defendant on trial is relevant
during the course of that defendant's trial.

This inquiry may have had some highly attenuated,
theoretical relevance, because it bolstered the prosecutor's
argument that the witness would rather have been outside
of prison than inside of it. However, even assuming that
such an argument would allow these questions to survive
scrutiny under Rule 401, they still would fail the balancing
test imposed by Fed. R. Evid. 403. The probative value is so
minimal and the risk of prejudice so certain that it fails
that test. The district court correctly sustained the defense
objection to it.

The Government attempts to justify the questions
regarding death threats by relying upon U.S. v.
Frankenberry, 696 F.2d 239 (3d Cir. 1982) cert. denied, 463
U.S. 1210 (1983), and U.S. v. Vastola, 899 F.2d 211, 235
(3d Cir. 1990) vacated on other grounds, 497 U.S. 1001
(1990). See Appellee's Br. at 11-12. However, our holdings
in those cases do not ameliorate our concern over what the
prosecutor did here. In both Vastola and Frankenberry, the
fear that raised the spectre of undue prejudice was
testimony that was elicited to explain a witness's
participation in the Witness Protection Program. Although
participation in that program can, under some
circumstances, unfairly suggest a defendant's
dangerousness to a jury, that was not the situation in

                               5
either of those cases. Moreover, in Frankenberry, evidence
of the witness's participation in the Witness Protection
Program was relevant to explain to the jury that the
Government was financially aiding the witness and
conferring a benefit upon him. Thus, it was not only
appropriate for this testimony to be elicited by the
prosecutor, it was advisable and perhaps even required. We
emphasized that "[t]he government explains that it elicited
[the witness's] testimony . . . because it was relevant that it
was financially aiding him and to rebut any inference that
the government was buying his testimony." Id. at 239. In
Vastola, we cited Frankenberry and noted that even when
such evidence is admissible, it "is a matter that must be
handled delicately." 899 F.2d at 234. The circumstances of
this prosecution fell short of the mark needed to justify
eliciting testimony from which a jury would infer a
defendant's dangerousness.

Nevertheless, for the reasons stated by the district court,
we do not believe that this line of questioning supports the
defendant's request for a new trial. As noted above, the trial
judge immediately gave a strong curative instruction
informing the jury that the defendants "had nothing
whatsoever to do with any threats" that the witness had
received. Although there are cases where the strongest of
curative instructions remains insufficient to"unring" the
bell, we do not believe that McCoy's testimony is such that
any prejudice that resulted from it was not eliminated by
the district court's immediate, direct, and insightful action.
"We must presume that a jury will follow an instruction to
disregard inadmissible evidence . . . unless there is an
overwhelming probability that the jury will be unable to
follow the court's instructions, and a strong likelihood that
the impact of the evidence would be devastating to the
defendant." U.S. v. Thornton, 1 F.3d 149, 157 (3d Cir.
1993).

Moreover, after the question was asked, and the curative
instruction given, the prosecutor did not return to the
subject nor attempt to exploit McCoy's answer to the
questions. The district court did not conclude that the
prosecutor engaged in intentional misconduct in asking
these questions and this record does not cause us to

                               6
disagree with that conclusion. Nevertheless, we would hope
that, in the future, the Government would exercise better
judgment in conducting an examination of a witness such
as McCoy and would not bring out this kind of testimony
unless it is relevant to some issue in the case.

III.

Accordingly, for the reasons set forth in the
memorandum of the district court, we will affirm the
judgment of conviction.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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