Appeal from a Judgment of Conviction
From the United States District Court for the Eastern District of Pennsylvania (No. 96-cr-00267-2)
BEFORE: COWEN and McKEE, Circuit Judges, and WEIS, Senior Circuit Judge
Submitted Pursuant to Third Circuit LAR 34.1(a)
The defendant appeals from his conviction for two counts of receipt of stolen property in violation of 18 U.S.C. Section(s) 371 and 2315. He alleges that the district court erred in denying his motion for a mistrial. For the reasons that follow, we will affirm.
The district court addressed the issue now before us in ruling upon the defendant's post-trial motions under Fed. R. Crim. P. 29(c) and 33, and we affirm substantially for the reasons set forth by the district court in its April 21, 1997 memorandum. However, given the nature of the challenged prosecutorial conduct, we think it appropriate to supplement what the district court has already said about this case.
Defendant and his codefendant, Morris Gershtein, each operated jewelry stores in "Jewelers Row" in Philadelphia, Pennsylvania. *fn1 The Government charged that the defendant and Gershtein entered into a relationship with Harold McCoy, whereby the latter would engage in a series of "smash and grab" robberies of jewelry stores in Virginia, North Carolina, Texas and elsewhere, and sell the proceeds of those robberies to defendant and Gershtein. McCoy was arrested in Texas for robbing a jewelry store there and transferred to Philadelphia, where he was charged in relation to several "smash and grab" robberies. Thereafter, McCoy entered into a plea agreement wherein he agreed to cooperate with the police in their investigation of Vaulin and Gershtein. As part of his cooperation McCoy wore a "body wire" and recorded conversations with Vaulin and Gershstein while selling them watches that appeared to have been stolen from other jewelry stores. *fn2 Vaulin was arrested almost immediately after purchasing the watches from McCoy and proceeded to a jury trial jointly with Gershtein on the aforementioned charges.
During the course of that trial, the Government called McCoy as a witness. On redirect examination, the Assistant United States Attorney asked McCoy whether he had received any threats while in prison because of his cooperation with the Government. McCoy answered that he received many death threats from inmates who are from Philadelphia. The prosecutor then asked McCoy why an inmate might threaten to kill him, but defense counsel objected and the court called counsel to sidebar because of its concern over the obvious dangers of this line of questioning. At sidebar, the prosecutor conceded that the threats did not come from Vaulin or Gershtein, and that these defendants had nothing to do with any threats. The court denied the defense motions for a mistrial, and asked the Government to clarify its question to eliminate any perceived connection between the threats and the defendants. The Assistant U.S. Attorney then asked McCoy: "You were threatened at Lewisburg but it had absolutely nothing to do with these defendants here, is that correct?" However, McCoy responded, "it was just basically-- directly, I am going to say no, not directly." App. at 124. Another sidebar ensued during which defendants renewed their motion for a mistrial fearing that McCoy's answer implied that the defendants had threatened McCoy indirectly. Nonetheless, the court once again denied that motion.
Following this sidebar, the court instructed the jury as follows:
This is by way of clarification. At sidebar here, the Government and the attorneys for the defendant stipulated and agreed that these two defendants that are in this courtroom on trial, had nothing whatsoever to do with any threats that this ...