                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 12-4198
                                 ________________

                          UNITED STATES OF AMERICA

                                         v.

                                 COREY GOLSON,
                                                    Appellant
                                 ________________

                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                    (D.C. Criminal Action No. 1-10-cr-00229-001)
                    District Judge: Honorable William W. Caldwell
                                  ________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  March 6, 2014


               Before: AMBRO, JORDAN, and ROTH, Circuit Judges

                           (Opinion filed: March 12, 2014)

                                 ________________

                                     OPINION
                                 ________________

AMBRO, Circuit Judge

      Appellant Corey Golson was convicted by a jury of drug and weapons charges and

sentenced to 78 months‘ imprisonment. He now appeals his conviction and argues that
the District Court abused its discretion when it did not grant a mistrial following the

allegedly improper testimony of a Government witness during trial.1

I. Background2

       In July of 2010, the United States Postal Inspection Service (―USPIS‖) discovered

that a package mailed from Phoenix, Arizona was addressed to a fictitious addressee—

Derek Brown—in Mechanicsburg, Pennsylvania. Investigators used a police dog to

confirm that the package contained drugs and obtained a search warrant to open the

package. Inside were nearly 20 pounds of marijuana.

       Investigators then arranged a controlled delivery of the package to the designated

address. Defendant Corey Golson eventually came to the door, identified himself as

Derek Brown, and signed for the package. Thirty minutes later, a police detector in the

package indicated that it had been opened. Police entered the home and found Golson

with the open package. During a search of Golson‘s room and surrounding area,

investigators found two firearms, ammunition, packaged and raw heroin, and equipment

used to package the drugs for sale.

       Golson was charged with: (1) criminal conspiracy to distribute and possess with

intent to distribute marijuana and heroin, in violation of 21 U.S.C. § 846; (2) distribution

1
  The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. Our
jurisdiction is pursuant to 28 U.S.C. § 1291.
2
  Golson‘s father, also named Corey Golson, was indicted on related drug and weapons
charges in a separate proceeding before the same District Judge. We recently affirmed
the elder Golson‘s conviction and sentence. See United States v. Golson, -- F.3d --, 2014
WL 521033 (3d Cir. Feb. 11, 2014). That opinion contains a more thorough recitation of
the background facts of this case. Here we review only the facts necessary to decide the
issue in this appeal.
                                              2
and possession with intent to distribute marijuana and heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C)-(D), and 18 U.S.C. § 2; and (3) possession of a firearm during

and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A),

(c)(1)(B)(i). Golson pled not guilty to all charges and proceeded to trial.

       On the second day of Golson‘s three-day trial, the Government called Postal

Inspector Joseph Corrado, the lead USPIS investigator in the case, as a witness. During

his testimony, Corrado was asked whether he submitted the drugs and guns found during

the search for fingerprinting. The following exchange occurred.

       [GOVERNMENT]: And were the firearms or any of the other items that
                     were recovered, were they submitted for fingerprinting
                     to the regional lab?

       [WITNESS]:           Not the regional lab, no.

       [GOVERNMENT]: And why not?

       [WITNESS]:           Well, for a variety of reasons. Ninety-eight percent,
                            roughly, of the cases I bring to the U.S. Attorney‘s
                            Office plead out. Okay? I had an expectation that this
                            case was going to take the same course.

       [DEFENSE]:           Objection, Your Honor

       THE COURT:           Absolutely, [AUSA] Bloom[?]

       [DEFENSE]:           Can we approach?

       THE COURT:           No, you don‘t need to approach.

       [DEFENSE]:           This is mistrial information, Your Honor.

       THE COURT:           Well –

       [GOVERNMENT]: Don‘t talk about what ultimately happens. If you
                     could talk about the reasons specific other than that. If
                     you could talk about reasons, any lab backlogs,
                     anything like that.
                                             3
       [WITNESS]:           Sure. The labs are backlogged roughly three to four
                            months. It‘s an expensive process to go through, and I
                            need to assess – I‘ve got as many as 20 active cases
                            going on – what needs to be sent and what needs to be
                            taken care of.

App. at 205-06.

       During the next recess, Golson‘s counsel again moved for a mistrial. She argued

that Corrado‘s testimony was highly prejudicial because it suggested to the jury that

Golson was going to plead guilty and forgo his right to go to trial. App. at 248-49. Judge

Caldwell denied the motion, but noted that he would review the written record on the

issue. Id. at 249.

       The following day, during an off-the-record conversation in chambers, Judge

Caldwell offered to give a cautionary instruction to the jury about Corrado‘s testimony in

response to the fingerprinting question. Golson declined such an instruction. His counsel

later explained that ―in our opinion, [Corrado‘s] testimony was too prejudicial, and if I

had gotten a cautionary instruction, it would have been way after the statement had been

made, and it could not have cured the prejudice that I think the statement created in the

minds of the jurors.‖ App. at 384.3




3
  Golson may well have waived the issue he appeals by refusing the Court‘s proffered
instruction. See United States v. Grubczak, 793 F.2d 458, 462 (2d Cir. 1986) (finding a
waiver of appellate review where the defendant did not request a limiting instruction
following a court‘s failure to communicate an evidentiary ruling to the jury); United
States v. Tedder, 801 F.2d 1437, 1445 (4th Cir. 1986) (refusing to grant a mistrial where
the defendant declined a court‘s proffered curative instruction). The Government does
not assert waiver. In any event, because we conclude that Golson‘s argument fails under
the Lore factors, we need not decide the issue.
                                             4
       Golson was found guilty on all charges except a sub-part of the conspiracy charge

(the jury found him not guilty of conspiracy to possess with intent to distribute

marijuana). He moved for a new trial based on, among other things, Corrado‘s

testimony. Judge Caldwell issued a memorandum opinion denying the motion, App. at

11-16, and, as noted, Golson was sentenced to 78 months‘ imprisonment. He now

appeals his conviction.

II. Discussion

       Golson raises one issue on appeal: whether the District Court abused its discretion

when it denied him a mistrial based on Corrado‘s testimony that ―[n]inety-eight percent,

roughly, of the cases I bring to the U.S. Attorney‘s Office plead out. Okay? I had an

expectation that this case was going to take the same course.‖ App. at 206.

       We review for abuse of discretion the denial of a motion for mistrial based on a

witness‘s allegedly prejudicial comments. United States v. Self, 681 F.3d 190, 199 (3d

Cir. 2012). ―Our inquiry focuses on whether [the] conduct at trial was so prejudicial that

defendant was deprived of a fundamental right,‖ United States v. Xavier, 2 F.3d 1281,

1285 (3d Cir. 1993), in this case the Sixth Amendment right to a fair trial. Both parties

agree that, ―in reviewing the denial of [a] motion on that standard, three factors guide our

analysis: (1) whether [Corrado‘s] remarks were pronounced and persistent, creating a

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

evidence; and (3) curative action taken by the [D]istrict [C]ourt.‖ United States v. Lore,

430 F.3d 190, 207 (3d Cir. 2005).



                                             5
       The parties disagree as to how the jury likely interpreted Corrado‘s testimony.

Golson contends that the jury would believe that Corrado knew that Golson was going to

plead guilty, and even goes so far as to assert that the jury would have inferred that

Corrado was privy to plea negotiations. Golson Br. at 15 (―From the jury‘s perspective,

the only reason for Corrado to forego fingerprinting based on his ‗expectation‘ that

Golson was pleading guilty would be if Corrado were privy to actual plea

negotiations . . . .‖). The Government counters that Corrado simply suggested that most

defendants plead guilty.

       Turning to Lore’s three-part test, we agree with the District Court that Corrado‘s

statement was not ―pronounced and persistent.‖ App. at 13. Lore held that ―a single

statement by a witness whose testimony spanned five days hardly can be deemed

‗pronounced and persistent,‘‖ especially when ―the record contains strong evidence of the

extent of [the defendant‘s] participation in the illegal schemes.‖ Lore, 430 F.3d at 207.

Corrado‘s statement that he expected Golson to plead guilty was improper under Federal

Rule of Evidence 403, but it was a single comment made in the course of a three-day

trial. And the Government persuasively argues that Corrado‘s statement was unlikely to

prejudice the jury given its obviously conclusory nature. Finally, following Golson‘s

objection to the testimony, Corrado offered an admissible explanation as to why he did

not immediately send the evidence for fingerprinting analysis, thereby softening any

effect his initial explanation was likely to have. For these reasons, we believe Corrado‘s

statement was neither pronounced nor persistent.



                                             6
       We also conclude that the second factor, the strength of the other evidence against

Golson, weighed against granting a mistrial. The Government presented evidence that

Golson identified himself as Derek Brown, and then signed for and opened a package

containing nearly 20 pounds of marijuana. During the subsequent search of the home,

investigators found two firearms, ammunition, drugs, and equipment used to package the

drugs for sale in and around Golson‘s bedroom. Accordingly, the evidence strongly

supported the conviction.

       Finally, the third factor, curative action taken by the court, also weighs in the

Government‘s favor. The District Court offered to instruct the jury that Corrado‘s

statement was not relevant, but Golson refused, essentially arguing that the instruction

would disadvantage the defendant by drawing attention to the testimony. While it is true,

as Golson argues, that ―some occurrences at trial may be too clearly prejudicial for . . . a

curative instruction to mitigate their effect,‖ Donnelly v. DeChristoforo, 416 U.S. 637,

644 (1974), an instruction by the Court that the jury should ignore Corrado‘s remark

would have cured possible prejudice to Golson in this case. That Golson refused the

instruction for fear of drawing the jury‘s attention to the comment only bolsters our

conclusion that the jury gave little, if any, weight to the statement.

       We agree with the District Court that each of the three factors under Lore weighed

against granting Golson a mistrial based on Corrado‘s statement. We conclude,




                                              7
therefore, that the District Court did not abuse its discretion when it denied Golson‘s

mistrial motion.4

       For the foregoing reasons, we affirm.




4
  There may be a persistent problem here of another sort. This is not the first time
Inspector Corrado has stepped over the line in the same manner he did here. While we do
not think his behavior warrants a retrial, we would be remiss if we did not acknowledge
what defense counsel has pointed out: in United States v. Williams, 444 F. App'x 535,
537 (3d Cir. Sept. 14, 2011), we had to deal with the same problem created in the same
fashion by the same law enforcement official. According to our nonprecedential opinion
in that case, ―[t]he allegations [of a Sixth Amendment violation] stem[med] from
Inspector Corrado's response to a question about why he had not attempted to take
fingerprints: ‗Just an investigative step I chose not to take. I didn't think we would
honestly be here.‘‖ Id. One comment like that can perhaps be passed off as inadvertence
(and indeed the panel in Williams opined that a ―review of the testimony does not easily
lead to [the] inference‖ that the officer was commenting on Williams‘ decision to ―go to
trial,‖ id.). This being the second occasion, however, the Government is in a more
tenuous position in asserting that there is no problem. We expect that we will not be
confronted with a third go-around of Corrado testifying or implying that he expected a
defendant to plead guilty.
                                               8
