         11-5445-cr
         United States v. Arnold Bell

                                        UNITED STATES COURT OF APPEALS
                                            FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of August, two thousand thirteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                         Appellee,
16
17                         -v.-                                             No. 11-5445-cr
18
19       ARNOLD BELL,
20
21                                         Defendant-Appellant.
22
23
24       FOR APPELLANT:                    JEFFREY C. KESTENBAND, Kestenband Law
25                                         Firm LLC, Glastonbury, CT.
26
27       FOR APPELLEE:                     JOHN H. DURHAM, Assistant United States
28                                         Attorney (Anthony E. Kaplan, Robert M.
29                                         Spector, Assistant United States
30                                         Attorneys, on the brief), for Deirdre M.
31                                         Daly, Acting United States Attorney for
32                                         the District of Connecticut, New Haven,
33                                         CT.
1         Appeal from the United States District Court for the
2    District of Connecticut (Nevas, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the District Court is

6    AFFIRMED.

7        Defendant-Appellant Arnold Bell appeals from a July 1,

8    2004 judgment of conviction and sentence imposed by the

9    United States District Court for the District of Connecticut

10   (Nevas, J.) following a jury trial.    We assume the parties’

11   familiarity with the facts and procedural history of this

12   case.

13       Bell contends that the district court improperly denied

14   two motions for a mistrial.   Specifically, Bell argues that

15   he is entitled to a new trial because during the

16   prosecution’s cross-examination of Bell, the prosecution (1)

17   asked allegedly improper questions concerning the

18   credibility and veracity of government witnesses that

19   substantially prejudiced Bell; and (2) asked allegedly

20   improper and prejudicial questions concerning statements

21   Bell made in his trial testimony, but had not made in a

22   post-arrest, post-Miranda statement.

23       The District Court did not abuse its discretion in

24   denying Bell’s two motions for a mistrial.    With respect to

                                   2
1    Bell’s first claim, Bell is unable to demonstrate that the

2    government’s conduct, even were it improper, caused him

3    substantial prejudice.     See United States v. Truman, 688

4    F.3d 129 (2d Cir. 2012).    The prosecution’s cross-

5    examination question that compelled Bell to characterize a

6    government witness as “lying” was improper.      See United

7    States v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994).      However,

8    the questions that compelled Bell to characterize government

9    witnesses as mistaken were not.     Id.   Considering the

10   prosecution’s isolated and minor impropriety, in conjunction

11   with the district court’s curative instruction to the jury,

12   Bell did not suffer substantial prejudice.

13       With respect to Bell’s second claim, Bell is unable to

14   show that the prosecution’s questions were improper.        Bell

15   is correct that under Doyle v. Ohio, 426 U.S. 610 (1976),

16   the prosecution may not use a defendant’s post-Miranda

17   silence for impeachment purposes.    However, the

18   prosecution’s questions that Bell challenges on appeal were

19   not posed for this improper purpose.      Rather, the challenged

20   questions identified inconsistencies between Bell’s trial

21   testimony and statements he had made during his post-arrest,

22   post-Miranda statement.     Doyle poses no bar to such


                                     3
1   questions, which concern prior inconsistent statements only.

2   See Anderson v. Charles, 447 U.S. 404, 408 (1980).

3       For the reasons stated above, the judgment of the

4   district court is AFFIRMED.

5
6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8
9




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