                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 10-1894
                    ____________

          UNITED STATES OF AMERICA

                          v.

              CORNELIUS NEWBERN,
                   a/k/a Corn

                   Cornelius Newbern,
                           Appellant
                    ____________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
             (D.C. No. 2-08-cr-00318-002)
     District Judge: Honorable Arthur J. Schwab
                    ____________

    Submitted Pursuant to Third Circuit LAR 34.1(a)
                   October 25, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges.

              (Filed: November 17, 2011)
                     ____________

             OPINION OF THE COURT
                  ____________
FISHER, Circuit Judge.

       Cornelius Newbern was convicted on one count of interstate travel in aid of

racketeering, in violation of 18 U.S.C. § 1952(a)(2). He appeals his judgment of

conviction and sentence. For the reasons stated below, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual and legal

history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Danielle Scalzitti was a seventeen-year-old drug addict, who worked as a

prostitute to support her habit. Her “boyfriend,” Andrew Pearson, served as her pimp. In

November 2007, Scalzitti and Pearson traveled from Chicago to Pittsburgh so Scalzitti

could work as a prostitute for a Pittsburgh madam named Paula Washington (“Ms.

Washington”). Ms. Washington was married to Willis Washington, who also went by the

name Silky. After Scalzitti had worked for Ms. Washington for several days, Silky called

Pearson and told him that Scalzitti had decided to leave Pearson and work for the

Washingtons. The next day, Scalzitti called Pearson to inform him that she had only

agreed to stay with the Washingtons after being physically intimidated by Silky. Shortly

thereafter, Scalzitti left Pittsburgh and reunited with Pearson.

       After returning to Chicago, Pearson approached Newbern, a long-time friend, and

asked Newbern to accompany him to Pittsburgh. Pearson testified that he told Newbern


                                              2
about the incident with the Washingtons, and asked if Newbern would assist in an

extortion plot. The plan was for Scalzitti to call Ms. Washington, tell her that she had

again left Pearson, and ask Ms. Washington to pick her up at a bus stop in Pittsburgh.

Pearson and Newbern would follow Ms. Washington to an apartment and rob her.

Pearson explained that in preparation for their trip, Newbern obtained a handgun and a

BB gun, and because neither Pearson nor Scalzitti could drive, Newbern agreed to rent a

car for the group. At trial, Newbern denied being part of any such plan, and instead

insisted that he went to Pittsburgh to promote his art to area museums. In December

2007, Pearson, Newbern, and Scalzitti traveled from Chicago to Pittsburgh Although it is

unclear exactly what was discussed during the drive, Pearson testified that they discussed

various courses of action, “mostly, how we intended to . . . take Silky, or you know, take

Paula, whoever was there at the house. . . . The plan was for us to . . . hold them there,

because I had planned to beat Silky up.”

       Upon arriving in Pittsburgh, Pearson and Newbern dropped Scalzitti off at the bus

stop and waited for Ms. Washington to arrive. When she did, the two men followed her

to an apartment that she used as a brothel. Pearson entered the apartment first, and

quickly discovered Scalzitti and Ms. Washington. He beat Ms. Washington and

demanded that she give him money. Newbern entered the apartment shortly thereafter,

and although he told Pearson to “take it easy,” he did not attempt to physically stop the

assault. According to Pearson, Newbern simply reminded him that “we came here for the


                                              3
money.” Scalzitti then bound Ms. Washington‟s hands with duct tape. Although

Newbern disputes this, Ms. Washington testified that Newbern assisted Scalzitti in tying

her up. Pearson then forced Ms. Washington into a car and the group drove to the

Washingtons‟ home. Newbern followed in the rental car. During the drive, Pearson

called Silky and attempted to extort him. By the time they arrived, Ms. Washington had

managed to loosen the duct tape and when the car stopped, she opened the door and

escaped. Scalzitti testified that Silky then exited the house and began to shoot at her and

Pearson. Pearson and Scalzitti quickly drove off and reunited with Newbern, who was

still driving the rental car. The three individuals then returned to Chicago.

       On August 19, 2008, a federal grand jury in the Western District of Pennsylvania

returned a two-count indictment against Pearson and Newbern. Count One charged the

two men with traveling in interstate commerce with the intent to commit a crime of

violence, in violation of 18 U.S.C. § 1952(a)(2). Prosecutors proceeded against Newbern

on a theory of aiding and abetting. Count Two charged Newbern and Pearson with

carjacking, in violation of 18 U.S.C. § 2119(2). Pearson pled guilty but Newbern

proceeded to trial. He was convicted on Count One, but acquitted on Count Two. He

was sentenced to 121 months‟ imprisonment to be followed by a three-year term of

supervised release. Newbern filed a timely notice of appeal.




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                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).

       Newbern first challenges his conviction on the basis that the District Court

committed reversible error by instructing the jury that an element of the offense of aiding

and abetting had been met as a matter of law. To obtain a conviction for aiding and

abetting, the government must prove that: (1) the substantive crime has been committed;

(2) the aider or abettor knew that the principal was committing the crime; (3) the aider or

abettor had the purpose to aid; and (4) the aider or abettor actually rendered aid or

assistance. United States v. Nolan, 718 F.2d 589, 592 (3d Cir. 1983) (citation omitted).

In this case, the District Court instructed the jury, “Mr. Pearson has already

acknowledged his guilt to [the substantive] offenses charged and, therefore, the Court

instructs you that element one has been met as a matter of law.” This instruction was

erroneous. Plea agreements of co-defendants cannot be used as substantive evidence of a

defendant‟s guilt. United States v. Gaev, 24 F.3d 473, 476 (3d Cir. 1994). “The

defendant has a right to have his guilt or innocence determined by the evidence presented

against him, not by what has happened with regard to a criminal prosecution against

someone else.” Id. (citations omitted).

       When a district court fails to submit an element to the jury, we review for harmless

error. Neder v. United States, 527 U.S. 1, 15 (1999). An error is harmless if “it can be


                                              5
„proved beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.‟” United States v. Waller, 654 F.3d 430, 434 (3d Cir. 2011) (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)). If the record contains evidence “that

could rationally lead to a contrary finding with respect to the omitted element,” the error

is not harmless. United States v. Barbosa, 271 F.3d 438, 459 (3d Cir. 2001) (citation

omitted).

       We find that the District Court‟s erroneous instruction in this case was harmless.

The Government was required to prove beyond a reasonable doubt that Pearson

committed the substantive offense of traveling in interstate commerce with the intent to

commit a crime of violence. See 18 U.S.C. § 1952(a)(2). Although Newbern now claims

that he contested Pearson‟s guilt, the record indicates otherwise. In fact, Newbern‟s trial

strategy seems to have been to show that Pearson acted alone in planning and committing

the crime. At no point in Newbern‟s testimony did he challenge Pearson‟s statement

regarding his own guilt. Moreover, contrary to Newbern‟s assertions, the evidence

presented at trial established beyond a reasonable doubt that Pearson traveled in interstate

commerce with the requisite intent. Pearson himself admitted to committing the crime,

he testified that he discussed his plan with Newbern during the trip from Chicago, and

Scalzitti testified regarding her prior interactions with the Washingtons, which gave

Pearson a motive to seek revenge. Thus, we “conclude beyond a reasonable doubt that

the jury verdict would have been the same absent the error.” Neder, 527 U.S. at 19.


                                             6
       The second basis asserted by Newbern for overturning his conviction is that the

District Court violated his rights under the Confrontation Clause by precluding cross-

examination of Ms. Washington regarding Silky‟s vulnerability to criminal prosecution.

Newbern sought to expose Ms. Washington‟s pro-Government bias by eliciting testimony

that Silky, who was prohibited from possessing a firearm, shot at Scalzitti and Pearson,

but was not prosecuted for those actions. The Government objected and the District

Court sustained the objection, stating that the proposed line of questioning was not

relevant or probative, and that there was no basis for Newbern‟s assertion that the

charging decision regarding Silky was in any way related to Ms. Washington‟s testimony.

       We review impositions on the scope of cross-examination for abuse of discretion.

United States v. Chandler, 326 F.3d 210, 213 (3d Cir. 2003). “[A] criminal defendant

states a violation of the Confrontation Clause by showing that he was prohibited from

engaging in otherwise appropriate cross-examination designed to show a prototypical

form of bias on the part of the witness.” Delaware v. Van Arsdall, 475 U.S. 673, 680

(1986). However, the Confrontation Clause does not prevent a trial judge from imposing

“any limits on defense counsel‟s inquiry into the potential bias of a prosecution witness.”

Id. at 679. “On the contrary, trial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination based on

concerns about . . . harassment, prejudice, confusion of the issues, the witness‟ safety, or

interrogation that is repetitive or only marginally relevant.” Id.


                                              7
       We have outlined a three-step inquiry for determining whether a limitation on the

scope of cross-examination violates a defendant‟s rights under the Confrontation Clause.

First, we must determine “whether [the] ruling significantly inhibited [the defendant‟s]

effective exercise of [his] right to inquire into [the] witness‟s „motivation in testifying.‟”

Chandler, 326 F.3d at 219. This depends on “whether the jury had sufficient other

information before it, without the excluded evidence, to make a discriminating appraisal

of the possible biases and motivation of the witnesses.” Id. (citations omitted). If the

trial court‟s ruling does inhibit the defendant‟s constitutional rights, we ask “whether the

constraints it imposed on the scope of . . . cross-examination fell within those „reasonable

limits‟ which a trial court, in due exercise of its discretion, has authority to establish.” Id.

Finally, even if the trial court abused its discretion, we will nevertheless affirm if the

error was harmless. Id. at 224.

       Here, we conclude that the District Court‟s ruling barring Newbern‟s counsel from

inquiring into Ms. Washington‟s potential bias did not “significantly inhibit [his]

effective exercise” of his right to cross-examination. See id. at 219. The jury had before

it ample evidence of Ms. Washington‟s motivation to offer testimony favorable to the

Government. Ms. Washington had previously been convicted for prostitution conspiracy,

but pursuant to a plea agreement, she had cooperated with the government and received a

reduced sentence. She also cooperated in a state investigation in return for charges being

dropped. She was thus well aware of the benefits of cooperating with a government


                                               8
investigation. Here, prosecutors declined to charge her with Scalzitti‟s prostitution. It

would be plain to a jury that Ms. Washington had a motive to testify favorably for the

Government. Thus, although the incentive to protect one‟s family is distinct from the

incentive to protective oneself, United States v. Lankford, 955 F.2d 1545, 1549 n.9 (11th

Cir. 1992), a trial judge is not required to allow inquiry into every potential basis for bias,

Van Arsdall, 475 U.S. at 679. As such, the District Court was not constitutionally

required to allow Newbern‟s counsel to question Ms. Washington regarding Silky‟s non-

prosecution.

       However, even if the District Court‟s ruling did inhibit rights protected by the

Confrontation Clause, it was not an abuse of discretion to bar Newbern‟s proposed line of

questioning. When asked to offer some proof of a connection between the Government‟s

decision not to prosecute Silky and Ms. Washington‟s testimony, Newbern‟s counsel

could offer no specific evidence. “Although counsel may explore certain areas of inquiry

in a criminal trial without full knowledge of the answer to anticipated questions, he must,

when confronted with a demand for an offer of proof, provide some good faith basis” for

the line of questioning. United States v. Katsougrakis, 715 F.2d 769, 779 (2d Cir. 1983).

Although Newbern correctly notes that a defendant is not required to present evidence of

an express non-prosecution agreement to inquire into a witness‟s potential pro-

government bias, United States v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989),

Newbern failed to make any connection at all. Additionally, a trial court properly


                                               9
exercises its discretion when it bars a line of questioning that could confuse the jurors.

Van Arsdall, 475 U.S. at 679. Here, inquiry into Silky‟s potential criminal liability could

have resulted in a mini-trial regarding whether he actually fired a gun at Pearson and

Scalzitti, which could have distracted jurors from the key issues in the case. Thus, the

District Court did not abuse its discretion in limiting the scope of cross-examination in

the manner that it did.

       Assuming, arguendo, that the District Court‟s ruling was an abuse of discretion,

we nevertheless find that the error was harmless. Although Ms. Washington‟s testimony

was important to the Government‟s case, further impeachment regarding her motivation

to testify favorably for the Government would have been cumulative. See Van Arsdall,

475 U.S. at 684. The District Court permitted extensive cross-examination regarding her

potential bias. See id. Moreover, Scalzitti and Pearson corroborated much of Ms.

Washington‟s testimony regarding Newbern‟s involvement in the crime. See id. Thus,

even if the “damaging potential of the cross-examination [was] fully realized,” the jury

verdict would have been the same. See id.; United States v. Hinton, 423 F.3d 355, 362

(3d Cir. 2005).

       Newbern next argues that the District Court committed reversible error by denying

his motion for a mistrial based on a comment made by the prosecutor during closing

arguments. We find Newbern‟s contention to be without merit. On cross-examination,

the prosecutor asked Newbern if anyone could corroborate that he traveled to Pittsburgh


                                             10
to promote his art. He said that the only person who could do so was his girlfriend, Gail

Binyon. The prosecutor then asked why Newbern did not subpoena her to testify.

During closing argument, the prosecutor asked the jury to consider Newbern‟s failure to

present as a witness the only person who could corroborate his story. Newbern contends

that these comments erroneously led the jury to believe that he had an obligation to

introduce evidence to establish his innocence.

       “We review a district court‟s decision to deny a motion for mistrial predicated on

the grounds that the prosecutor made improper remarks in a closing argument for abuse

of discretion.” United States v. Wood, 486 F.3d 781, 786 (3d Cir. 2007) (citation

omitted). Because the prosecutor was permitted to follow the contested line of inquiry on

cross-examination and during closing argument, the District Court did not abuse its

discretion in denying Newbern‟s motion for a mistrial. “It is perfectly proper to comment

on the failure of the defense to call a potentially helpful witness, at least where . . . the

comment could not be construed as a comment on the failure of the defendant to testify.”

United States v. Keller, 512 F.2d 182, 186 (3d Cir. 1975) (citations omitted). Here, it was

appropriate for the prosecutor to ask Newbern why he did not subpoena Binyon, who

would be a “potentially helpful witness” given that she was the only person who could

corroborate his story. See id. It was also proper to discuss Newbern‟s testimony on this

issue during summation.




                                               11
       Newbern cites our dicta in United States v. Molina-Guevara, 96 F.3d 698, 703 n.1

(3d Cir. 1996), in which we opined that it may not be appropriate to comment on the

defendant‟s failure to present a witness where the witness is unavailable or privileged,

where the witness might be expected to be biased against one party, or where the witness

is equally available to both sides and the testimony is likely to benefit neither. None of

these scenarios are present in this case. Binyon is not unavailable; the fact that she is

taking care of Newbern‟s child does not establish unavailability as a matter of law. See

United States v. Kelly, 892 F.2d 255, 262 (3d Cir. 1989). Despite Newbern‟s assertions

to the contrary, there is no reason to think that Binyon would be biased against Newbern.

See Molina-Guevara, 96 F.3d at 703 n.1. Although she was vulnerable to criminal

charges, in addition to having a child with Newbern, she specifically tried to help him

avoid criminal liability in this case. And if, as Newbern claims, she would corroborate

his story that he traveled to Pittsburgh to explore art opportunities, her testimony would

clearly be more likely to benefit Newbern. See id.

       Finally, Newbern alleges that the District Court erred in imposing a four-level

enhancement under U.S.S.G. § 2B3.2(b)(3)(A)(iv) for use of a dangerous weapon during

commission of the offense, and requests that we remand for re-sentencing. We review

the District Court‟s interpretation of the U.S. Sentencing Guidelines de novo and its

factual findings for clear error. United States v. Lianidis, 599 F.3d 273, 278 (3d Cir.

2010). Section 2B3.2(b)(3)(A)(iv) of the Sentencing Guidelines provides for a four-level


                                             12
enhancement “if a dangerous weapon [is] otherwise used.” “Otherwise used” is defined

as “conduct [that] did not amount to the discharge of a firearm but was more than

brandishing, displaying, or possessing a firearm or other dangerous weapon.” U.S.S.G.

§ 1B1.1 cmt. n.1(I). Here, Pearson “otherwise used” a dangerous weapon when he pistol-

whipped Ms. Washington with the BB gun.

       The District Court determined that, under U.S.S.G. § 1B1.3(a)(1)(B), Newbern

was responsible for the conduct of Pearson and Scalzitti that was “reasonably

foreseeable” and “in furtherance of the jointly undertaken criminal activity.” The District

Court found that it was reasonably foreseeable that Pearson would use the gun in the

manner that he did. This finding was not clearly erroneous. Pearson testified that

Newbern supplied him with the gun, and thus knew that he had the weapon. Newbern

traveled to Pittsburgh with Pearson for the purpose of robbing the Washingtons, one of

whom was known to be a pimp, and Newbern was present during part of Pearson‟s

beating of Ms. Washington. Based on these facts, the District Court‟s finding that it was

reasonably foreseeable to Newbern that Pearson would use the gun to physically assault

Ms. Washington was not clearly erroneous. Thus, we will affirm the sentence imposed

by the District Court.

                                              IV.

       For the foregoing reasons, we will affirm the judgment of conviction and the

judgment of sentence of the District Court.


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