                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2008

USA v. Morena
Precedential or Non-Precedential: Precedential

Docket No. 07-1297




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                                 PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

                No. 07-1297
               _____________

      UNITED STATES OF AMERICA

                       v.

           WILLIAM J. MORENA,

                                   Appellant
               _____________

On Appeal from the United States District Court
   for the Western District of Pennsylvania
           (D.C. No. 05-cr-00274)

  District Judge: Honorable David S. Cercone
                 ____________

          Argued September 11, 2008
               ____________

Before: SLOVITER, FUENTES and ALDISERT,
               Circuit Judges

         (Filed: November 19, 2008)
Lisa P. Freeland
       Federal Public Defender
Renee Pietropaolo (Argued)
       Assistant Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222

       Counsel for Appellant

Mary Beth Buchanan
      United States Attorney
Laura Schleich Irwin (Argued)
      Assistant United States Attorney
700 Grant Street, Suite 4000
Philadelphia, PA 15219

       Counsel for Appellee




                 OPINION OF THE COURT


ALDISERT, Circuit Judge.

       William J. Morena appeals from the judgment on a
verdict of the United States District Court for the Western
District of Pennsylvania finding him guilty of being a felon in
possession of a firearm and possessing that firearm, an
unregistered sawed-off shotgun with a barrel of less than
eighteen inches in length. Morena also appeals the enhancement
of his sentence for possession of a firearm in connection with
another felony. We are asked to decide whether: (1) the
government’s injection into the trial of extensive evidence of
uncharged drug use and transactions by Morena, as well as
evidence of Morena’s prior non-felony convictions, amounted
to prosecutorial misconduct and plain error; (2) the District
Court exceeded its discretion in admitting evidence of Morena’s
drug use and dealing for the purpose of showing background
and motive; (3) Morena’s Sixth Amendment right to counsel
was violated because his attorney faced possible obstruction of
evidence charges for actions in the case and thus acted under an
actual conflict of interest; and (4) the District Court erred by
applying a four-point sentencing enhancement for possession of
a firearm in connection with another felony, based on uncharged
evidence of drug dealing.1 We conclude that the government’s

       1
         The District Court properly exercised jurisdiction under
18 U.S.C. § 3231. This Court has jurisdiction over Morena’s
direct appeal pursuant to 28 U.S.C. §1291. In addition, this
Court has jurisdiction over Morena’s appeal from judgment of
sentence based on 18 U.S.C. §§ 3742(a)(1) and (a)(2).
       Because no objection on the basis of prosecutorial
misconduct was made at trial, this Court reviews Morena’s
claim of prosecutorial misconduct for plain error. United States
v. Olano, 507 U.S. 725, 731 (1993). This Court has discretion to
correct a plain error affecting substantial rights only if the error
“seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 732 (internal quotation marks and

                                 3
repeated injection of prejudicial drug evidence into the trial
testimony constituted prosecutorial misconduct resulting in a
denial of due process and that the District Court plainly erred in
allowing introduction of the quantum of this evidence. We will
reverse and remand for a new trial.

                                 I.

         Federal prosecutors have a special and solemn duty to
refrain from improper methods of obtaining a conviction. “The
United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be done.” Berger
v. United States, 295 U.S. 78, 88 (1935). As such, a prosecutor
“may prosecute with earnestness and vigor–indeed, he should do
so. But, while he may strike hard blows, he is not at liberty to
strike foul ones.” Id.

       Improper prosecutorial conduct rises to the level of
constitutional error “when the impact of the misconduct is to
distract the trier of fact and thus raise doubts as to the fairness
of the trial.” Marshall v. Hendricks, 307 F.3d 36, 67 (3d Cir.
2002). The test for prosecutorial misconduct is whether the
conduct “‘so infected the trial with unfairness as to make the


citation omitted).

                                 4
resulting conviction a denial of due process’” in light of the
entire proceeding. Id. at 64 (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). In conducting this analysis, this
Court assesses the prosecutor’s improper actions, the weight of
properly admitted evidence and any curative instructions given
by the trial court. Moore v. Morton, 255 F.3d 95, 112-113 (3d
Cir. 2001).

        A Rule 404(b) Federal Rules of Evidence analysis guides
our determination that the government’s systematic injection of
evidence of drug use and dealing by Morena into the trial
constituted prosecutorial misconduct in violation of due
process.2 For prior “bad acts” evidence to be admissible, the
Supreme Court has directed that (1) the evidence must have a
proper purpose under Rule 404(b); (2) it must be relevant under
Rule 402; (3) its probative value must outweigh its prejudicial
effect under Rule 403; and (4) the court must instruct the jury to



       2
           Rule 404(b) provides:

      Evidence of other crimes, wrongs or acts is not
      admissible to prove the character of a person in
      order to show that he acted in conformity
      therewith. It may, however, be admissible for
      other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident.
Rule 404(b), Federal Rules of Evidence.

                                   5
consider the evidence only for the limited purpose for which it
is admitted. Huddleston v. United States, 485 U.S. 681, 691-692
(1988). Admission of bad acts evidence must be carefully
scrutinized because, “[a]lthough the government will hardly
admit it, the reasons proffered to admit prior-bad-act evidence
may often be a Potemkin, because the motive, we suspect, is
often mixed between an urge to show some other consequential
fact as well as to impugn the defendant’s character.” United
States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992).

       In this case, police found a sawed-off shotgun concealed
in a heating duct of Morena’s home during a warranted search.
Informant Dale Palmer claimed to have twice seen Morena with
the shotgun and provided probable cause for the search by
conducting a “controlled buy” of crack cocaine from Morena.
Morena was never charged with any drug offenses. In pretrial
conference, the government contended that some discussion of
drugs was necessary for background and that it would show that
Morena possessed the shotgun to protect a drug dealing
enterprise. App. 60. The District Court cautioned about the
prejudicial danger in admitting drug evidence, but ruled that
drug evidence was admissible for motive and was relevant “to
the presentation of facts as they had occurred.” Id. at 75.

       However, the government repeatedly exceeded its pretrial
proffer, systematically injecting inadmissible drug evidence into
the two-day trial. The record reveals that, time and again, the
government introduced prejudicial drug evidence with no proper

                               6
purpose under Rule 404(b). Over the two-day trial, the District
Court declared at least five times that the government’s use of
drug evidence was “too prejudicial” or warned the prosecutor
that the prejudice from the drug evidence outweighed its
probative value. Nevertheless, the District Court ultimately
failed to prevent the rampant injection of inadmissible evidence
into the trial and its single limiting instruction to the jury was
inadequate to cure the prejudice.

          The government’s misconduct started as soon as it called
its first witness. The prosecutor elicited detailed testimony about
heroin dealing not connected to Morena and was warned by the
Court at sidebar to go no further. See App. 131-132 (“[A]ll of
this detail and this coverage of this drug transaction is
unnecessary and prejudicial. . . . [Y]ou’ve laid your background
for it. I think you got in what you needed to. I think you should
move on.”). The government disregarded this direction from the
District Court. Immediately thereafter, it elicited testimony
about a 500-bag heroin transaction for which Morena was not
ever charged or connected. Id. at 139. The District Court
admonished the government again, and gave its only limiting
instruction–a reminder to the jury to keep in mind that this was
not a drug case. Id. at 140.

       The government continued to cross the line with
improper drug evidence in the face of explicit prohibition by the
District Court. When Morena sought to establish his defense that
George Mushinsky, the registered owner of the shotgun, had

                                7
lived in Morena’s house and concealed the shotgun there while
Morena was incarcerated for a probation violation, the
government asked Morena’s wife on cross-examination how
many times her husband had violated probation by failing urine
tests for drugs. Then, on cross-examination of Morena’s mother,
the government asked, “How long has [Morena] been a drug
user?”, prompting the District Court to again warn, “Come on.
Let’s move on, please.” Id. at 340. The government’s next
question was, “And you never talked to him about his drug
use?”, upon which the defense objected. Id. At sidebar, the
District Court refused to entertain the government’s arguments
that such questioning went to the mother’s credibility or was a
necessary response to the defense and again identified the use of
drug evidence as improper and too prejudicial.3

       On the last day of trial, final defense witness Ron
Sherwood testified that he helped George Mushinsky move into
Morena’s home during the summer of 2004 and that Sherwood
saw the shotgun in Mushinsky’s possession at that time. On
cross-examination, the government asked Sherwood, “Did you
know the defendant had a drug problem?” Id. at 357. At this, the
District Court issued a stern rebuke of the prosecutor’s


        3
         The District Court: “I mean, this isn’t what the witness
was called for. . . . It was offered by [defense counsel] to show
time frames. Now you’re opening up this door into an area about
his use of drugs, and it’s prejudicial. . . . It’s too prejudicial.” Id.
at 340-341.

                                   8
misconduct throughout the trial and threatened to declare a
mistrial.4 The government refrained from further misconduct for


       4
           The District Court:

        If I hear one more reference to drugs about the
        defendant that I find is irrelevant, I’m going to be
        tempted to declare a mistrial. . . .You’ve crossed
        the line. I mean, it’s like you’re trying this case on
        drugs. There’s more evidence in this case about
        drugs than about the gun. It’s too prejudicial. . . .
        Every opportunity you have, you insert drugs in
        this case. . . . What you’re doing, you’ve done it
        systematically throughout the trial, is every time
        there was a proper relevancy to drugs, you then
        take it, and you take it into an area that is
        irrelevant. And you’re–and it’s very obvious from
        the record what is happening in this case. . . .
        You’re getting into other criminal activity, and
        it’s, it’s extremely prejudicial, and the probative
        value is outweighed by the, the prejudicial impact.
        . . . 90 percent of this case has been about drugs
        and ten percent about the firearms. . . . [I]f it
        comes out again and there’s a motion, the Court
        will seriously consider it. And if I grant it, it will
        be with double jeopardy attaching for
        prosecutorial misconduct, because I have clearly
        said throughout the trial that you’re stepping over
        the boundary.
Id. at 358-360.

                                  9
the brief remainder of the trial, but by this point the damage had
been done. The introduction of inadmissible drug evidence had
permeated the proceedings with prejudice.

                                II.

       The government contends, however, that even if
prejudicial evidence was erroneously admitted it nonetheless
presented “firm and sufficient evidence of [Morena’s]
possession of the sawed-off shotgun.” Appellee’s Br. at 89.
“When the evidence is strong, and the curative instructions
adequate, the Supreme Court has held the prosecutor’s
prejudicial conduct does not deprive a defendant of a fair trial.”
Moore, 255 F.3d at 113. Moreover, “[w]e are bound, after a jury
has delivered a guilty verdict, to interpret the evidence in a light
most favorable to the government.” United States v. Pungitore,
910 F.2d 1084, 1097 (3d Cir. 1990). The government contends
that Palmer’s testimony that he twice saw Morena with the
shotgun, plus the evidence of two shotgun shells found in
Morena’s bathroom, a digital scale found in Morena’s kitchen,
and the presence of blue tape on both the gun and digital scale
provides sufficient basis for the jury’s guilty verdict regardless
of any erroneous admission of drug evidence.
       We decide that the government’s evidence was not
sufficient to overcome the prejudice resulting from the
prosecutor’s misconduct. Even viewed in the light most
favorable to the government, the case against Morena boils
down to the testimony of one witness who has significant

                                10
credibility issues and a few items of circumstantial evidence.
         In Berger, the Supreme Court found that the case for a
conspiracy conviction against the defendant “may properly be
characterized as weak–depending, as it did, upon the testimony
of . . . an accomplice with a long criminal record.” Berger, 295
U.S. at 89. Here, similarly to Berger, the government’s case
hinged on the testimony of an associate with a long criminal
record. Palmer, the key witness, was a long-time drug addict
with multiple criminal convictions who admitted to changing his
story at least once to get money for drugs, and who was
cooperating with police to mitigate the consequences of his own
criminal charges. It was largely Palmer’s word against Morena’s
defense that the shotgun’s true owner, George Mushinsky, had
left the gun in the house without Morena’s knowledge.
        Because only Palmer ever claimed to have seen Morena
with the gun, “a finding of guilt really hinged on a credibility
determination” between Palmer’s testimony and Morena’s
defense. Appellant’s Br. at 71. In such a case, improper
suggestions and insinuations “are apt to carry much weight
against the accused when they should properly carry none.”
Berger, 295 U.S. at 88. As this Court has noted, “Character
evidence is not rejected because it is irrelevant. On the contrary,
‘it is said to weigh too much with the jury and to so
overpersuade them as to prejudice one with a bad general record
and deny him a fair opportunity to defend against a particular
charge.’” Sampson, 980 F.2d at 86 (quoting Michelson v. United
States, 335 U.S. 469, 475-476 (1948)); see also Virgin Islands


                                11
v. Toto, 529 F.2d 278, 283 (3d Cir. 1976) (continued integrity
of proceedings is near impossible after admission of improper
prejudicial evidence because “[a] drop of ink cannot be removed
from a glass of milk”).
       As in Berger, “if the case against [Morena] had been
strong, or, as some courts have said, the evidence of his guilt
‘overwhelming,’ a different conclusion might be reached.”
Berger, 295 U.S. at 89. However, this Court has held that even
“finding the evidence ‘more than sufficient’ for conviction does
not necessarily end the constitutional inquiry.” Moore, 255 F.3d
at 112. The reviewing court must always factor the prejudicial
effect of the prosecutor’s impropriety into the jury’s finding of
guilt and then assess its impact. Id. at 112-113. Here, the
prejudicial impact was great, and in the absence of
overwhelming evidence of guilt, the strength of the
government’s evidence fails to outweigh the prosecutorial
misconduct.
                                 III.
        Finally, the District Court’s limiting instructions were
inadequate to cure the prejudice from the prosecutorial
misconduct. After its initial reprimand of the government during
examination of the first government witness, the District Court
halted testimony to advise the jury to remember that Morena was
on trial for firearm possession, not any drug charges.5 This was


       5
           The District Court:


                                 12
the only limiting instruction given to the jury. Further, the brief
instruction was couched as a “reminder,” and did not directly
charge the jury to disregard the improper references to drug use
and collateral drug transactions. During final instructions, the
District Court did caution the jury that Morena “is only on trial
for these two counts and no other criminal conduct that has been
mentioned or alluded to.” App. 482. This general instruction
was hardly a specific direction to disregard the drug evidence.
Moreover, even a very strong jury instruction to disregard a
prosecutor’s conduct may nevertheless result in a denial of due
process in the context of the entire trial where, as here, the
evidence is marginal and the prejudicial conduct significant.
Moore, 255 F.3d at 118, 120. Because of the highly prejudicial
nature of the evidence, the District Court’s instructions to the
jury did not cure the prosecutor’s misconduct.



      Ladies and gentleman of the jury, remember, this
      case is about the defendant in this case [sic] is
      charged with possession of a firearm by a
      convicted felon and possession of an unregistered
      firearm. He is not charged with any drug offenses.
      All this evidence about drugs is being offered for
      the limited purpose of showing how the police
      officers investigated this matter. I just think that
      point has to be made, because there’s been quite
      a bit of testimony about drug trafficking in this
      case.
App. 140.

                                13
       During the entire trial, the government’s systematic
presentation of prejudicial drug evidence constituted misconduct
in violation of due process. “[W]e have not here a case where
the misconduct of the prosecuting attorney was slight or
confined to a single instance, but one where such misconduct
was pronounced and persistent, with a probable cumulative
effect upon the jury which cannot be disregarded as
inconsequential.” Berger, 295 U.S. at 89. Accordingly, Morena
was denied due process by the unfairness of the trial and it was
plain error for the District Court to permit the government’s
persistent introduction of inadmissible drug evidence.
                              IV.
        Because we reverse and remand on the basis of
prosecutorial misconduct regarding drug evidence, it is not
necessary to meet Morena’s additional contentions, namely, that
the introduction and admission of Morena’s prior non-felony
convictions was prosecutorial misconduct and plain error; that
the District Court exceeded its discretion in admitting evidence
of Morena’s drug use and dealing for the purpose of showing
background and motive; that Morena’s Sixth Amendment right
to effective assistance of counsel was violated because his
attorney faced possible obstruction of evidence charges in the
case and thereby acted under an actual conflict of interest; and
that the District Court erred by applying a four-point sentencing
enhancement for possession of a gun in connection with another
felony.
       With regard to Morena’s Sixth Amendment claim,

                               14
however, we remind the parties that in this Court an actual
conflict of interest claim, like other types of ineffective
assistance of counsel claims, is generally not cognizable in the
first instance on direct appeal. Such claims are better reserved
for 28 U.S.C. § 2255 actions. See United States v. Cocivera, 104
F.3d 566, 570 (3d Cir. 1996); United States v. Gambino, 788
F.2d 938, 951 (3d Cir. 1986). The rationale behind this practice
is that collateral review allows for adequate factual development
of the claim, especially because ineffective assistance claims
“‘frequently involve questions regarding conduct that occurred
outside the purview of the district court and therefore can be
resolved only after a factual development at an appropriate
hearing.’” Government of Virgin Islands v. Zepp, 748 F.2d 125,
133 (3d Cir. 1984) (quoting United States v. Swinehart, 617
F.2d 336, 340 (3d Cir. 1980)); see also Cocivera, 104 F.3d at
570 (same). This rationale “is equally applicable to claims of
ineffective assistance of counsel based on a conflict of interest
as to those based on trial counsel’s incompetence.” Gambino,
788 F.2d at 951.
        Only in the rare case where facts showing an actual
conflict of interest are clear on the record, and no waiver of the
right to conflict-free counsel was evident, has this Court made
an exception and found an ineffective assistance claim based on
conflict of interest cognizable on direct appeal. Zepp, 748 F.2d
at 133-134 (where trial counsel faced potential criminal liability
for aiding and abetting destruction of drug evidence and his
independent personal knowledge of the circumstances of the
charges made him a witness for the prosecution, on those facts

                               15
alone it was an actual conflict of interest for him to have
represented the defendant in her trial for cocaine possession and
destruction of the same evidence).
       This Court has established that defense counsel’s
potential criminal or professional liability for actions in a case,
even in the absence of direct proof of wrongdoing, may
constitute an actual conflict with representation of a client in
that case. See id. at 136; see also United States v. Greig, 967
F.2d 1018, 1022-1023 (5th Cir. 1992) (attorney who tried to
persuade his client’s separately represented co-conspirator not
to cooperate with the government had an actual conflict of
interest arising from his own unethical and possibly criminal
behavior), but see United States v. Merlino, 349 F.3d 144, 151,
152 (3d Cir. 2003) (on appeal of denial of waiver of conflict-
free counsel) (agreeing that “[a]n attorney who faces criminal or
disciplinary charges for his or her actions in a case will not be
able to pursue the client's interests free from concern for his or
her own” but finding that only a “potential for conflict” existed
where defense counsel faced possible criminal liability for
attempting to influence the testimony of his client’s co-
conspirator).
       Nevertheless, if there is any ambiguity on the record
whether an actual conflict exists, this Court will abstain from
addressing the claim on direct appeal. See, e.g., Gambino, 788
F.2d at 953 (“While the evidence strongly indicates that there
may have been a conflict, . . . [b]oth parties have advanced
various, plausible interpretations of the trial strategy employed


                                16
by [defense counsel]. Consequently, we cannot approach this
record with the sanguinity envisioned by Zepp.”). The exception
articulated in Zepp is limited to “those exceptional situations
that lend themselves to only one conclusion–that trial counsel
labored under an actual conflict of interest.” Id.
                          ******
       The judgment of the District Court will be reversed and
the proceedings remanded for a new trial.




                              17
