                                                       NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                  Nos. 11-1217, 11-3577, and 11-4439


                      UNITED STATES OF AMERICA

                                  v.

                      ORLANDO SUASTEGUI,

                                            Appellant in 11-1217


                   UNITED STATES OF AMERICA

                                  v.

                     EDUARDO CHOPIN-MEZA,
                      a/k/a "Orlando Martinez",

                                            Appellant in 11-3577


                   UNITED STATES OF AMERICA

                                  v.

                  DIONI SANTIAGO-RODRIGUEZ,

                                           Appellant in 11-4439


              On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
(D. C. Nos. 2-09-cr-00378-001; 2-09-cr-00378-002 and 2-09-cr-00378-003)
               District Judge: Honorable C. Darnell Jones, II
                        Submitted under Third Circuit LAR 34.1(a)
                                    on March 7, 2013

                 Before: SCIRICA, JORDAN and ROTH, Circuit Judges

                              (Opinion filed: June 19, 2013 )


                                       OPINION


ROTH, Circuit Judges:

       In this consolidated appeal, Eduardo Chopin-Meza, Orlando Suastegui, and Dioni

Santiago-Rodriguez (collectively, the defendants) challenge their convictions following a

trial before the District Court. For the reasons that follow, we will affirm the District

Court’s judgment of conviction as to each of the defendants.

I.     Background1

       In January 2009, an informant cooperating with the DEA helped coordinate a sting

operation resulting in the defendants’ arrest. At the time of their arrest, the defendants

were found to be in possession of approximately 600 grams of cocaine, 1.2 grams of

crack cocaine, and a 9mm handgun. The defendants were arrested and charged with

various immigration, narcotics, and firearms offenses, including possession of a firearm

in furtherance of a drug transaction in violation of 18 U.S.C. § 924(c).

       All three defendants proceeded to trial on the Section 924(c) charge. Santiago-

Rodriguez and Chopin-Meza pleaded guilty to the drug charges, so Suastegui was the

1
 We write primarily for the parties, who are familiar with the facts of this case.
Therefore, we will set forth only those facts necessary to our analysis.

                                              2
only member of the trio who contested those issues before the jury. Because Suastegui

was the sole defendant facing drug charges at trial, he moved to sever his trial from the

trial of his co-defendants. The District Court denied the motion.

       At trial, the informant testified about his relationship with Santiago-Rodriguez.

During cross-examination, the informant’s answer to a question suggested that he was

about to testify about his failed attempt to purchase a gun with Santiago-Rodriguez

approximately three months before the narcotics transaction at issue in this case. Before

the informant gave his answer, the government moved for a sidebar and requested that

evidence of the attempted purchase be excluded because the conversation was not

relevant and admission of such a conversation would prejudice Santiago-Rodriguez. The

District Court excluded the testimony.

       Later on, during the same cross-examination, the informant apparently referred to

his failed attempt to buy a gun with Santiago-Rodriguez, stating: “The one time I was

supposed to meet somebody for guns didn’t happen.” The informant did not refer to

Santiago-Rodriguez by name, although he was discussing the drug deal with Santiago-

Rodriguez shortly beforehand. After this testimony was elicited, the defendants moved

for a mistrial or, in the alternative, severance of their trials. These motions were denied.

       Suastegui also cross-examined a DEA agent about the contents of the criminal

complaint and affidavit he signed. Although the District Court allowed cross-

examination on the issues about which the agent had personal knowledge, it held that the




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agent could not testify about information that was “relayed to federal agents” because

such testimony would be hearsay.

       At the conclusion of the trial, Suastegui was convicted of the narcotics charges.

All three defendants were convicted of the Section 924(c) offense. The defendants filed

post-trial briefs arguing that the government had committed prosecutorial misconduct by

failing to disclose that the informant and Santiago-Rodriguez had previously attempted to

purchase a gun. In response, the government laid out the details of the attempted

purchase: the informant and Santiago-Rodriguez were looking to buy a .45 caliber pistol

or an AK-47 assault rifle. However, when they attempted to contact the seller to arrange

a place to complete the transaction, they could not get in touch with him because his cell

phone number was no longer in service. The District Court denied the defendants’

motion for a mistrial, finding that there was no Brady violation and that evidence of the

prior attempted gun purchase was inadmissible. Additionally, the District Court held that

Santiago-Rodriguez suffered no prejudice by the informant’s single reference to the

unsuccessful gun purchase.

II.    Discussion2

       The defendants have alleged seven different errors in the proceedings below: (1)

the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose

the attempted gun purchase; (2) the District Court improperly limited cross-examination


2
 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291.

                                             4
on the subject of the attempted gun purchase; (3) the District Court failed to sever the

trial based on the evidence of the attempted gun purchase; (4) the District Court failed to

declare a mistrial based on the informant’s reference to the attempted gun purchase; (5)

the District Court erred in limiting cross-examination based on hearsay objections; (6) the

evidence presented at trial did not establish Santiago-Rodriguez’s possession of a gun;

and (7) the jury instructions for the Section 924(c) charge were inconsistent. As

discussed below, the defendants’ arguments are unavailing.

       A.     Brady Claim

       Suastegui and Chopin-Meza assert that they were denied a fair trial and are

entitled to a new one due to the government’s failure to disclose Santiago-Rodriguez’s

previous attempt to purchase a gun. They argue that this evidence constituted Brady

material that should not have been withheld. Our review of the District Court’s

conclusions of law as to the Brady claim is plenary. United States v. Risha, 445 F.3d

298, 303 (3d Cir. 2006). We review any findings of fact for clear error. Id.

       Under Brady, the government has an obligation to disclose all evidence that is

favorable to the accused and material either to guilt or punishment. Brady, 373 U.S. at

87. Here, the informant’s testimony about the failed gun purchase was not exculpatory

for Suastegui or Chopin-Meza. All that the evidence showed is that Santiago-Rodriguez

had previously tried and failed to purchase a gun. That evidence had nothing to do with

showing who was the owner of the gun on the day that the defendants were arrested.




                                             5
Therefore, because the evidence was not exculpatory, Suastegui and Chopin-Meza’s

Brady claim fails.

       B.     Cross-Examination

       Suastegui and Chopin-Meza also allege that the District Court should have

allowed them to cross-examine the informant about the conversation he had with

Santiago-Rodriguez about the gun purchase. We review the District Court’s evidentiary

rulings for an abuse of discretion, including its limitations on cross-examination. United

States v. Stadtmauer, 620 F.3d 238, 271 (3d Cir. 2010).

       This argument is without merit because Santiago-Rodriguez’s failed attempt to

buy a gun in the months before his arrest is inadmissible as evidence to show that it was

Santiago-Rodriguez alone who possessed the gun recovered in the car on the day of his

arrest. See Fed. R. Evid. 404(b) (barring admission of evidence offered to show that a

person committed a crime based on his commission of a previous, similar crime).

Consequently, the District Court did not abuse its discretion in barring any cross-

examination of the informant on this topic.

       C.     Severance

       Suastegui and Chopin-Meza assert that the District Court should have granted

their motion for severance. We review a district court’s denial of a motion for severance

for an abuse of discretion. United States v. Hart, 273 F.3d 363, 369 (3d Cir. 2001). But

even with an abuse of discretion, reversal is not required absent “clear and substantial




                                              6
prejudice” resulting in a manifestly unfair trial. Id. at 370 (citation and internal quotation

marks omitted).

       Suastegui and Chopin-Meza argue that, had their trial been severed from Santiago-

Rodriguez’s, they would have been able to offer evidence of Santiago-Rodriguez’s prior

attempt to buy a gun with the informant to show that Santiago-Rodriguez was the sole

possessor of the gun found in the car when they were arrested. This argument fails

because, as noted above, using evidence of Santiago-Rodriguez’s earlier failed attempt to

buy a gun as evidence that he owned the handgun found on his person on the day of the

defendants’ arrest is impermissible under Rule 404(b). Given the absence of an abuse of

discretion or any clear or substantial prejudice to the defendants, we reject their severance

argument.

       D.     Mistrial

       All three defendants contend that the District Court should have granted their

motions for a mistrial due to the informant’s inadvertent reference to the conversation he

had with Santiago-Rodriguez about purchasing a gun. “We review the denial of a motion

for a mistrial based on a witness’s allegedly prejudicial comments for an abuse of

discretion.” United States v. Riley, 621 F.3d 312, 335-36 (3d Cir. 2010) (citations and

internal quotation marks omitted). “Three factors must be analyzed to determine whether

the defendant was prejudiced: “(1) whether [the witness’s] remarks were pronounced and

persistent, creating a likelihood they would mislead and prejudice the jury; (2) the




                                              7
strength of the other evidence; and (3) curative action taken by the district court.” Id. at

336 (alteration in original) (citations and internal quotation marks omitted).

       The District Court did not abuse its discretion in declining to grant a mistrial based

on the informant’s reference to his attempt to purchase a gun with Santiago-Rodriguez.

As to Suastegui and Chopin-Meza, the interactions between the informant and Santiago-

Rodriguez have nothing to do with Suastegui or Chopin-Meza’s guilt or innocence.

Therefore, they could not suffer prejudice as a result of the informant’s testimony. As to

Santiago-Rodriguez, the remarks were short, isolated, and vague, so there was little

chance of misleading the jury. Additionally, there was strong evidence in support of

Santiago-Rodriguez’s guilt of using a firearm in furtherance of a narcotics transaction:

he was arrested in a car with over a half kilogram of cocaine and a handgun. Finally, any

curative instruction to the jury would have only served to draw unnecessary attention to

the informant’s testimony. Consequently, we find that Santiago-Rodriguez suffered no

prejudice either.

       E.     Hearsay Objections

       Suastegui argues that the District Court erred in refusing to allow him to cross-

examine a DEA agent about certain portions of the criminal complaint and affidavit he

signed. “We afford a district court’s evidentiary ruling plenary review insofar as it was

based on an interpretation of the Federal Rules of Evidence, but review a ruling to admit

or exclude evidence, if based on a permissible interpretation of those rules, for an abuse

of discretion.” United States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000).

                                              8
       The District Court allowed cross-examination on most of the agent’s personal

knowledge of the facts contained in the documents, but ruled that Suastegui could not

cross-examine the agent about certain information that had been “relayed to federal

agents” by a confidential informant because the agent’s testimony on that subject would

be inadmissible hearsay. Suastegui asserts that the exception for regularly conducted

activity applies and that the agent should have testified about the information relayed by

the informant because he had personal knowledge of what that information was. See Fed.

R. Evid. 803(6). Suastegui, however, overlooks the fact that the information relayed to

the agent is itself hearsay and is therefore subject to the double hearsay provision of Rule

805, which prohibits admission of hearsay nested within hearsay. Thus, even if the Rule

803(6) exception applied to the agent’s statements in the criminal complaint and

affidavits, the statement of the confidential informant to the agent is hearsay subject to no

exception. Therefore, the evidence was properly excluded.

       F.     Sufficiency of the Evidence to Support a Conviction Under Section
              924(c)

       Santiago-Rodriguez argues that the mere presence of the gun in the car at the time

of his arrest is insufficient to sustain his conviction under Section 924(c). Santiago-

Rodriguez did not move for a judgment of acquittal on this ground. We therefore review

this claim on appeal for plain error. United States v. Gordon, 290 F.3d 539, 547 (3d Cir.

2002). “A conviction based on insufficient evidence is plain error only if the verdict

constitutes a fundamental miscarriage of justice.” Id. (internal quotation marks omitted).


                                              9
       Section 924(c) criminalizes the use of a firearm in furtherance of a drug trafficking

crime. 18 U.S.C. § 924(c)(1)(A). “A defendant convicted of conspiracy is liable for the

reasonably foreseeable acts of his coconspirators committed in furtherance of the

conspiracy.” United States v. Ramos, 147 F.3d 281, 286 (3d Cir. 1998) (citing Pinkerton

v. United States, 328 U.S. 640 (1946)). Thus, if the government is proceeding on a

Pinkerton theory, it need not prove the defendant’s knowledge of the gun’s existence;

rather the government need only prove that one of his co-conspirators knew that a gun

was being used in furtherance of narcotics trafficking. Id.

       There was ample evidence to support the jury’s verdict: the gun was found in the

car that the defendants were in—indeed, the gun was found wedged in the seat right next

to Suastegui at the time of his arrest—while they were consummating a narcotics

trafficking offense. Thus, the jury could have concluded that Suastegui knowingly

possessed the gun in furtherance of committing such an offense. Under Pinkerton, that

knowledge could have been imputed to Santiago-Rodriguez. Because no miscarriage of

justice occurred in convicting Santiago-Rodriguez of violating Section 924(c), there was

no plain error and we will not disturb the jury’s verdict.

       G.     Jury Instruction for the Section 924(c) Charge

       Santiago-Rodriguez argues that the jury instruction was improper because the

Pinkerton instruction to the jury removed the element of knowledge from the Section

924(c) offense and therefore the Pinkerton instruction, the Section 924(c) instruction, and




                                             10
the charges set forth in the indictment are all in conflict. Santiago-Rodriguez did not

object to the jury instructions, so we review for plain error. Gordon, 290 F.3d at 542-43.

       The jury was given separate instructions on the Section 924(c) offense and

Pinkerton liability. The jury was instructed that knowledge was an element of a Section

924(c) offense. The jury was also instructed that, under Pinkerton, it could impute the

acts of Santiago-Rodriguez’s co-conspirators to Santiago-Rodriguez. The Pinkerton

instruction did not remove the knowledge element from the Section 924(c) charge in the

indictment or conflict with the Section 924(c) instruction about the knowledge element;

rather, the Pinkerton instruction properly allowed the jury was to impute the knowledge

element to Santiago-Rodriguez based on the knowledge of his co-conspirators. We

therefore find no plain error in the jury charge.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s judgment of

conviction as to each defendant.




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