                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 08-3472
                                    _____________

                           UNITED STATES OF AMERICA

                                             v.

                                  MALIK NELSON,
                                             Appellant


                                      ___________
                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No.06-cr-00520-06)
                     District Judge: Honorable Jerome B. Simandle
                                     _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                  January 26, 2010


      Before: FUENTES and FISHER, Circuit Judges, and *KANE, District Judge

                            (Opinion Filed: March 30, 2010)




                              OPINION OF THE COURT




* Honorable Yvette Kane, Chief Judge of the United States District Court for the Middle
District of Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:

       Appellant Malik Nelson appeals from the District Court’s denial of his motion

objecting to a statement made during the Government’s opening argument, motion to

exclude evidence of prior bad acts, motion to preclude the expert testimony of a Drug

Enforcement (“DEA”) Special Agent, motion for a mistrial, and for finding that Nelson

perjured himself when he testified in his defense. For the following reasons, we affirm

the District Court’s judgment.1

                                               I.

       Because we write primarily for the parties, we discuss the facts only to the extent

necessary for resolution of the issues on appeal.

       Nelson and six co-defendants were charged with various drug related crimes that

occurred between 2004 through 2006 in New Jersey. Nelson was accused of purchasing

powder cocaine from Felipe Telleria and reselling it as powdered cocaine or crack. As

part of the investigation, law enforcement wiretapped Telleria’s phone, recording

conversations with Nelson 68 times over a three month period. Additionally, investigators

installed a surveillance camera focused on Telleria’s home.

       Telleria, who testified for the prosecution pursuant to a plea arrangement, detailed




       1
           The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231
and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291, and, because this
appeal involves the application of the Sentencing Guidelines, 18 U.S.C. § 3742.

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Nelson’s participation in the drug conspiracy generally, and also stated that he sold Nelson

three kilograms of cocaine on April 11, 2006. (App. 168) Telleria testified that Nelson

paid him approximately $40,000 for the drugs and also gave Telleria his 2001 Chevrolet

Tahoe as collateral. Telleria further testified that on June 3, 2006, Nelson purchased a half

of a kilogram of cocaine from Telleria. (SA. 35) Surveillance footage shows Nelson

entering and exiting Telleria’s home on that date. The wiretap recorded Nelson asking to

purchase an additional nine ounces from Telleria later that day and surveillance

photographs show Nelson entering and exiting Telleria’s house that evening. (App. 38;

SA. 22-24). The federal investigation into this drug conspiracy ended after an Ohio State

Highway Patrol Officer recovered two kilograms of cocaine in the trunk of one of

Telleria’s drug suppliers during a routine and unrelated traffic stop. Nelson was arrested

shortly thereafter.

       Nelson’s six co-defendants pled guilty. After a trial by jury, during which Nelson

testified, he was found guilty of: (1) conspiring to distribute and possessing with intent to

distribute at least five kilograms of cocaine and at least 50 grams of cocaine base from

July 2004 through July 11, 2006; (2) distributing and possessing with intent to distribute at

least 500 grams of cocaine on April 11, 2006; and (3) distributing and possessing with

intent to distribute at least 500 grams of cocaine on June 3, 2006. The District Court

sentenced Nelson to 360 months imprisonment, ten years of supervised release and

ordered him to pay $300 in special assessments.



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                                                II.

       Nelson raises several issues on appeal. He first contends that the statement –

“Malik Nelson took those kilograms and kilograms of cocaine and resold them here on our

streets of Southern New Jersey” -- was argumentative and unduly prejudicial, and

therefore the District Court should have struck it from the government’s opening

statement. “The standard of review for allegedly prejudicial comments by the prosecution

in its opening statement . . . [i]f the error is non-constitutional . . . [is whether] it is highly

probable that the error did not contribute to the judgment . . . .” United States v. Lore,

430 F.3d 190, 207 (3d Cir. 2005) (internal citation & quotation marks excluded). As the

District Court noted, the prosecution proffered that it would introduce evidence that

Nelson conducted a drug business on the streets of South Jersey. Indeed, the evidence

introduced at trial demonstrated that Nelson sold drugs in Bridgeton from 2004 through

2006. Drug distribution was the essence of the crimes charged against Nelson and

therefore was not unduly prejudicial.

       Next, Nelson argues that the District Court abused its discretion when it denied his

in limine motion to exclude the admission of six incidents involving recovering of large

sums of cash, firearms, and of narcotics from Nelson. See United States v. Johnson, 388

F.3d 96, 100 (3d Cir. 2004) (noting that we review evidentiary rulings for abuse of

discretion). The government sought to admit these incidents because they were intrinsic to

the charged conspiracy. The District Court agreed, but did, however, exclude or sanitize



                                                -4-
some of the evidence pursuant to Fed. R. Evid. 403. Nevertheless, Nelson argues that the

District Court impermissibly permitted the Government to introduce “prior crimes and bad

acts and to bootstrap its conspiracy allegation.” Appellant’s Br. at 32.

       “In cases where the incident offered is a part of the conspiracy alleged in the

indictment, the evidence is admissible . . . because it is not an ‘other’ crime. The evidence

is offered as direct evidence of the fact in issue, not as circumstantial evidence requiring

an inference as to the character of the accused. Such proof ... may be extremely prejudicial

to the defendant but the court would have no discretion to exclude it because it is proof of

the ultimate issue in the case.” 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal

Practice and Procedure § 5239, at 450-51 (1978). Here, the District Court did not abuse

its discretion when it permitted sanitized introduction of these incidents because they

directly related to the charges enumerated in the indictment. As the Government correctly

notes, evidence of cocaine possession and distribution, possession of large amounts of

cash and possession of firearms during the time period of an alleged drug distribution

conspiracy directly proved the charges. Nelson’s argument, that the incidents are not

intrinsic evidence of the conspiracy because they were removed in time from the

substantive counts, is unpersuasive. These incidents, which involve possession of

firearms, narcotics and large sums of cash, directly bear on the conspiracy charge.

       Third, Nelson challenges the District Court’s ruling permitting DEA Special Agent

David McNamara to testify as an expert in the fields of narcotics and narcotics trafficking.



                                             -5-
After the close of his testimony, the District Court permitted Agent McNamara to answer a

juror’s written question regarding how long it would take to microwave cocaine before it

turned into crack. Before permitting Agent McNamara to answer the inquiry, the District

Court questioned Agent McNamara to establish his expertise to opine on drug cooking in a

microwave oven. Once established, the District Court permitted McNamara to answer the

juror’s question. This ruling was not an abuse of discretion because pursuant to Fed. R.

Evid. 702, a person with special knowledge, training or education may testify as an expert

to assist a jury. Agent McNamara was a DEA agent with over 15 years experience. He

was trained for 14 weeks at Quantico and had been involved in hundreds of drug

operations, 90% of which involved cocaine. McNamara testified that approximately 10%

- 20% of those cases involved cooking crack cocaine in a microwave. (SA. 47-49) Thus,

the District Court’s determination that McNamara had the experience to qualify as an

expert in the field of cocaine manufacturing was not an abuse of discretion.

       Next, Nelson argues that the District Court erred when it did not declare a mistrial

after the government inquired about his prior heroin use during cross-examination.

Nelson’s counsel objected and the district court sustained that objection. “We review a

district court’s decision not to grant a mistrial on the grounds that the prosecutor made

improper remarks . . . for abuse of discretion, and, if error is found, we apply harmless

error analysis.” See United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996)

(citations omitted). During discussions over the objection, the District Court noted in open


                                             -6-
court that there was no evidence that Nelson was a heroin user, to which the Government

replied “other than his own admission.” A lengthy sidebar then ensued during which the

District Court strongly admonished the prosecutor and suggested the possibility of a

mistrial. At that time, however, Nelson did not request a mistrial. Instead, the District

Court instructed the jury to disregard the question and the colloquy regarding Nelson’s

past heroin use, noting that whether he used heroin was irrelevant to the case. (App. 67)

       A jury is presumed to follow a curative instruction and a defendant faces a high

hurdle when he or she contends that the instruction was insufficient to cure any error. See,

e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987). Prejudicial testimony will not

mandate a mistrial when there is other significant, admissible evidence of guilt. Here,

while the prosecutor’s comment was improper, there was significant admissible evidence

of Nelson’s guilt. The government introduced the testimony of cooperating co-

conspirators, police testimony, and videotapes and tape recordings which demonstrated

Nelson’s guilt. Therefore, considering the overwhelming evidence of Nelson’s

participation in drug related crimes, any reference to his purported heroin use did not

influence the jury’s verdict and was likely cured by the limiting instruction. In other

words, this is not a case where the evidence is so marginal and the prosecutor’s statement

is so prejudicial that Nelson’s due process rights were violated. See, e.g., United States v.

Morena, 547 F.3d 191, 197 (3d Cir. 2001).

       Lastly, Nelson objects to the District Court’s factual finding during sentencing that



                                             -7-
he perjured himself several times during his testimony. We review a district court’s

determination that a defendant committed perjury for clear error. See United States v.

Cusumano, 943 F.2d 305, 315 (3d Cir. 1991). The District Court’s determination was

soundly based on the evidence admitted at trial, including video and audio surveillance,

co-conspirator testimony, and law enforcement testimony. Therefore, the District Court’s

finding pursuant to U.S.S.G. § 3C1.1 was not clearly erroneous.

                                            III.

      For the foregoing reasons, we affirm the judgment of the District Court.




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