                                                NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 13-4735
                               _____________


                        UNITED STATES OF AMERICA

                                      v.

                             BRIAN MCNEAL,
                                       Appellant
                              _____________

               On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                    District Court No. 2-13-cr-00016-001
               District Judge: The Honorable Cynthia M. Rufe
                               _____________

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                             September 8, 2014

           Before: SMITH, SHWARTZ, and ROTH, Circuit Judges

                           (Filed: October 15, 2014)

                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.
      On April 4, 2013, a jury found Brian McNeal guilty of the illegal possession

of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

On December 13, 2013, the District Court sentenced McNeal to 210 months’

imprisonment and three years of supervised release. McNeal appeals, contending

that his conviction should be set aside for four reasons: (1) the District Court erred

by denying in part his request to redact certain aspects of his statements to law

enforcement officials; (2) the District Court erred by failing to dismiss a juror who

saw an unredacted version of McNeal’s statements; (3) prosecutorial misconduct

deprived him of a fair trial; and (4) his counsel was ineffective.1 For the reasons

that follow, we will affirm the judgment of the District Court.2

                                          I.

      Police officers executed a traffic stop of McNeal’s vehicle at approximately

2:50 a.m. on April 2, 2011. During the stop, the officers saw within McNeal’s

reach in the rear passenger area of the car a plainly visible handgun on top of a

shoebox. When McNeal admitted he did not have a permit to carry the gun, the

officers arrested him and placed him in the patrol car. While he was in the patrol

1
  McNeal’s assertion of prosecutorial misconduct includes the argument that
defense counsel’s failure to object during the closing argument deprived him of the
effective assistance of counsel as guaranteed by the Sixth Amendment. Because
our preference is to address ineffective assistance claims on collateral review, we
will not address the merits of the ineffectiveness claim here. United States v.
Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003) (citing Massaro v. United States,
538 U.S. 500, 504-05 (2003)).
2
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
                                          2
car, McNeal called his paramour, Muriel James, and directed that she come to the

scene and tell the police that she owned the gun. James complied, but the police

did not believe that the gun was hers.

        At the police station, McNeal waived his Miranda3 rights. During his

interview with Detective Leonard Azzarano, McNeal acknowledged that he owned

the car, but claimed that he did not know the gun was in it. McNeal told Detective

Azzarano that it was James’s gun and that she purchased it for protection while

McNeal was in prison. McNeal explained that “[w]e’re not allowed to have it in

the house because of my parole.” Supp. App. 336. He further admitted that he had

convictions that prohibited him from possessing a gun.

        McNeal did not challenge the admissibility of his statements to Detective

Azzarano, but requested that the Court redact that portion of his statement

indicating that he had more than one felony conviction, that James purchased the

firearm when he was in prison, and that he was on parole. McNeal argued these

facts were unfairly prejudicial and should be excluded under Federal Rule of

Evidence 403.       The District Court agreed that the reference to McNeal’s

imprisonment should be redacted from his written statement, but denied the motion

to redact the other information.

        The case proceeded to trial. During deliberations, the jury asked to see

McNeal’s statement. The unredacted statement referencing his time in prison was


3
    See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
                                          3
inadvertently shown to the jury on the computer screen for a moment. Juror #3

notified the Court that he had seen McNeal’s “when I was in jail” comment. The

District Judge questioned Juror #3, who expressed his belief that, even though he

could not “unremember it,” he could still deliberate fairly and impartially.

Nonetheless, McNeal moved to dismiss Juror #3. The Court denied that request.

Thereafter, the jury returned a verdict of guilty.

                                          II.

      We reject McNeal’s argument that the District Court erred by admitting into

evidence the fact that he had more than one conviction and was on parole. We

review a district court’s evidentiary rulings for abuse of discretion. United States

v. Green, 617 F.3d 233, 251 (3d Cir. 2010). Under Federal Rule of Evidence 403,

a District Court “may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . [inter alia,] unfair prejudice.” We

conclude that the District Court did not abuse its discretion as the probative value

of these facts was not substantially outweighed by the risk of unfair prejudice.

      McNeal also asserts that the District Court erred by refusing to dismiss Juror

#3, who momentarily saw the unredacted statement that McNeal had served time in

prison. In United States v. Vega, 285 F.3d 256, 265 (3d Cir. 2002), we instructed

that a challenge of this nature is subject to review for abuse of discretion. A

review of the transcript shows that the District Court carefully conducted two voir

dires with this juror, and spoke with the jury foreperson and another juror. After

                                           4
hearing the position of the parties, the Court found that Juror #3’s knowledge of

the unredacted statement would not affect his ability to perform his duties as a

juror. We conclude that the District Court did not abuse its discretion.

      Finally, McNeal argues that his conviction should be set aside because

prosecutorial misconduct deprived him of a fair trial. According to McNeal, the

prosecutor improperly vouched for the government’s witnesses during both her

closing and rebuttal arguments. Because defense counsel did not object to the

statements in the prosecutor’s closing, we review for plain error. United States v.

Brennan, 326 F.3d 176, 182 (3d Cir. 2003) (citation omitted).          But, because

defense counsel objected to the alleged impermissible vouching in the prosecutor’s

rebuttal, we review those comments for harmless error. Fed. R. Crim. P. 52(a);

United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000).

      To establish impermissible vouching, McNeal must show that the prosecutor

assured the jury of a government witness’s credibility and that this assurance must

have been based on the prosecutor’s personal knowledge or other information

outside of the record. See United States v. Vitillo, 490 F.3d 314, 327 (3d Cir.

2007); see also Brennan, 326 F.3d at 183. We conclude that the prosecutor’s

remarks during closing argument were proper comments on the evidence adduced

at trial and conclude that the statements in rebuttal were proper responses to the

defendant’s closing argument. See United States v. Weatherly, 525 F.3d 265, 272

(3d Cir. 2008).

                                          5
         For the reasons set forth above, we will affirm the judgment of the District

Court.




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